Are you looking to get a trademark for a product or service and are wondering if you can get a poor man’s trademark instead? And what exactly is a poor man’s trademark?
What Is a Poor Man’s Trademark?
A poor man’s trademark, in simple terms, is when a person mails to themselves in an envelope their underlying artwork or name they wish to trademark to themselves using the United States Postal Service.
The theory is that, because they have used the United States Postal Service by attaching a stamp to an envelope, it acts as proof that a concept was created on the date that the item was mailed.
Confusion with a Poor Man’s Copyright
In a related fashion, a poor man’s copyright takes place when a person mails to themselves in an envelope the underlying piece of creative work they would like to copyright. Because the item was mailed on a specific date, the theory is that a copyright is created as of that date for the underlying material that was mailed in an envelope, because the United States Postal Service was used.
A poor man’s copyright does not work to provide legitimate copyright rights. So do not rely on any underlying poor man’s copyright to provide you with legal rights.
In fact, you will want to work with the copyright office to make sure you obtain any potential copyright rights. A provision in the copyright law is that the holder must enforce the copyright rights on their own.
This means you should be on guard for any potentially infringing use. A poor man’s copyright alone will not allow you to do this.
A Poor Man’s Trademark Does Not Work
Unfortunately, poor man’s trademarks and poor man’s copyrights do not work as played out. The idea that a poor man’s trademark can actually grant trademark rights is a myth, and it is important to realize that you need to follow the official trademark application with the United States Trademark Office (USPTO) to actually obtain a trademark for your idea. This type of content can be easily forged.
Moreover, mailing a copy of your business name or logo does nothing to actually identify your brand in the marketplace or provide protection. It is a better idea to use your trademark out in the marketplace in order to get common law trademark rights.
This is because trademarks technically begin from the moment that you start using them in public. Trademark registration with the USPTO simply provides you with increased and greater rights to that trademark.
Because what matters is public usage of your trademark, your ‘secret’ or ‘private’ records of the trademark are of no value to establishing your rights to it.
Why Trademark Registration with the USPTO Is Important
Obtaining trademark rights through the USPTO is typically a very good idea. This is because official trademark registration provides the greatest legal protection over your trademark. Trademarks are often vital components of your business, and therefore it is important to specifically register with the USPTO.
Notably, federal trademark registration with the USPTO can provide you with increased legal protection over your underlying brand, name, logo, or other trademark. By obtaining federal trademark registration, you will have the legal rights to use that trademark in connection with your particular goods or services.
This means that if a competitor infringes on your trademark in some manner, then as a trademark owner you can seek legal action against the infringer to stop them from using the business name.
By getting a federal trademark registration with the USPTO, you will be able to file legal action in a federal court for any trademark infringement. Moreover, so long as you win, you will be able to get monetary damages for any harm that may have been caused to you or your business because of the infringing use.
In fact, many times you will be able to completely stop an infringer from using your trademark by getting an injunction from the court.
Common Trademark Mistakes
Make sure you don’t make the typical trademark mistakes that often happen with new businesses. Here are some key considerations to think about.
Make sure you conduct thorough searches within the USTPO’s Trademark Electronic Search System (TESS) database. This means you want to search throughout the TESS database for not just identical, but also similar trademarks.
Conduct general searches for potential trademark conflicts that may exist outside of the TESS database. Not all trademarks are registered with the USPTO. This means someone could still own trademark rights even though it is not specifically registered with the USPTO.
Engage a Trademark Attorney
It is completely understandable that you want to keep costs down as you trademark that logo or name for your specific product or service. However, something to keep in mind is potentially engaging a trademark attorney as you start the process.