So yesterday I roll up to this hair salon in Salem, Massachusetts—because where else would you get your hair done when flying in from Central America?
The owner had agreed to come in early to do the cut and color because apparently I am a demanding lunatic who needs to get on the road to Vermont sooner than later so HOW CAN WE MAKE THIS WORK, BRO? (Kidding, he offered to do it; I didn’t even have to bribe him.)
So I’m in the chair, twirling my imaginary booby tassels, when I compliment him on the decor. And then he compliments me on my energy. And then I compliment him on the name of the salon. And then he says, “And would you believe there’s been a bunch of copycats cropping up?” And then I gasped and said, “WAIT, WHAT, WHO ARE THESE HOOLIGANS?!” And then he sighed all like, “Yeah, I never registered the trademark…” And then I bolted out of my chair, flinging hair dye, shaking my fist, and yelling, “BUT THAT DOESN’T MATTER, EDDIE! YOU HAVE COMMON LAW TRADEMARK! COMMON LAWWWWW!!!!”
And then obviously Eddie stopped dead in his tracks (“Why has no one ever told me this?!”) and we proceeded to have a conversation about the fact that you don’t have to have a federally registered trademark in the United States for you to enjoy common law trademark rights—as long as you were first. The first time you begin using the name in commerce (meaning money is exchanged), the government’s all like, “Oh, okay, I see what you’re doing there, slick” and thereby automatically grant you first come first serve trademark rights under common law. (If only this worked with boyfriends.) This means that any other butthead who comes along and starts using the same name as you, in the same industry, in your same geographic area, is legally infringing on your shiz. And you can send them a cease and desist because, HIIIIIIIIII NICE TO MEET YOU NOW GET OUT OF MY HOUSE.
And for businesses like Eddie’s, that’s perfectly appropriate. Hair salons operate in geographic regions.
But what if your business is on the Internet and EVERYWHERE is your region? <Insert wide-eyed gasp here.>
Yeah, that’s a problem. Because common law won’t apply to you outside of the actual geographic region where your business is located—BUT a federally registered trademark will. And this is why most online business owners *need* to be registering the names of their businesses, their products, their first borns—because otherwise anyone can come along and be all, finders keepers, losers weepers!
And yet, most online business owners aren’t even thinking about this kind of stuff. They’re still livin’ on a prayer, dipping their toe in the water, trying to see if it’s going to work out, first, before investing any money. But guess what? Even if you don’t want to shell out a few hundred bucks to register your name, you still need to make sure that cute name you came up with isn’t infringing on someone *else’s* stuff. Because what happens if you spend a year busting your ass to get your name out there and then YOU get sent the cease and desist letter—or worse, sued? If a name is federally registered, then that means that you can be sued not only for statutory damages, but also for attorney’s fees. Could be a few thousand dollars; could be $150,000 in penalties. NOT A RISK YOU WANT TO TAKE. On the flip side, however, by federally registering your trademark (after you’ve made sure it’s available) you *also* get those benefits. ?
So to recap, the moral of the story is:
a) Salem, Massachusetts is adorable.
b) You should Google common law trademark rights.
c) You should also probably register your trademark, already, and stop doing that thing where you don’t know about something so you totally procrastinate because it’s sort of intimidating but you know you need to do it anyway.
d) You should also grab my legal kit where I teach you about EVERYTHING you need to know about this riveting topic, except I promise I won't bore you to tears and only tell you the stuff you need to know if you're starting an online business.
Okay.
I love you.
I adore you.
I hope you sleep like a brick tonight.
And we’ll talk again tomorrow because—cue Montell Jordan’s 1995 hit—This Is How We Do It.
XO,
Ash