Every entrepreneur on Kickstarter should take note of some common trademark mistakes that can be easily corrected.
The initial launch of a product on Kickstarter, Indiegogo or another crowdfunded platform can be extremely exciting for a creator. However, failure to protect your brand can result in substantial legal costs and marketing challenges, often resulting in your being forced to change your brand, but not on your own terms.
Trademark registration is essentially an insurance policy for your intellectual property.
The following are some of the most common and disastrous trademark mistakes made by entrepreneurs on Kickstarter.
Failure to file a trademark application ASAP
Filing a trademark application before you launch your Kickstarter is ideal, but it is never too late to seek protection for your brand.
- If you don't register your trademark, anyone else can.
- Once you file a trademark application, you are 'in line', and have a priority over others who file after you.
not filing an intent to use trademark application
Kickstarter may not count as 'use in commerce' for the purposes of a US federal trademark registration.
- An 'intent to use' application allows for the filing of up to five extensions to show that you are using the mark.
- This can be a valuable tool by protecting your trademark rights while product development is still ongoing.
- For more information, see Does My Kickstarter Qualify As Intent to Use Under Trademark Law?
selecting a descriptive trademark
You cannot register a trademark that describes your product, its qualities, or its features unless you can show that the trademark has acquired distinctiveness.
- If you are just launching on Kickstarter, it is unlikely that your descriptive trademark has acquired distinctiveness among consumers through longtime use.
- If you want to describe your product or its characteristics, a slogan is a much better way to do so.
Failure to select a strong trademark
The more distinct your trademark, the more protection you will receive under trademark law.
- The strongest trademarks are those which are completely made up (Kodak/Costco/Publix); or arbitrary in nature (Jaguar or Mustang for vehicles).
- Almost as strong, is a suggestive trademark (WITE-OUT), which does not describe anything, but rather, suggests a link between your trademark and the products that it represents.
not changing your trademark yourself before a lawsuit forces you To
Kickstarter is often a testing ground for both products and brands. If your brand cannot be trademarked, it is best to change it as soon as you realize this.
- Descriptive trademarks or those likely to cause consumer confusion carry more risk and increase exposure to copycats and trademark infringement.
- A comprehensive trademark clearance search and routine monitoring or the mark is essential for any serious brand.
While these concerns are best handled before launching a crowdfunding effort, it is the failure to address them at all, that increases the potential of disastrous legal and marketing consequences for your brand.