Should You File for a Trademark before Your Product Is Market-Ready?

When is the best time to file a trademark application? For young businesses that haven’t yet broken into the market, registering a trademark may seem like an expensive inconvenience. Why bother registering when your product is not ready?

There is one good reason to register your trademark right away: delaying your application increases the risk of infringement.

To ensure you retain the rights to your trademark you should consider filing an application now, even if your product is not yet market-ready.

Building a brand

Building a successful brand takes time. It needs to be compelling, strong, and memorable. People need to associate the brand with the product. Companies can only achieve this with months, even years, of work promoting the brand.

In the age of diminishing attention spans, starting early becomes even more important. Best-selling author and marketer Seth Godin advises authors to start promoting their books three years before release. He offers the same advice to companies launching products. It is the most effective way for brands to build equity with the public.

Imagine spending all that time, energy, and money, only to find out that another company already owns a trademark on your brand. The entire company would feel demoralized. Given all the work that would go into fixing the brand, such a revelation could absolutely break a company.

Applying for a trademark early in the process means you can work out any legal issues before they become a problem. A knowledgeable trademark attorney will perform a full search, uncovering any potential problems. You’ll know where your trademark stands and can act accordingly.

Being proactive pays. Unless there is some reason why you believe your product will be unsuccessful, there really is no reason for you to delay the registration of your mark.

Trademarking the product

As we discussed in this article, you can’t trademark your actual product. However, you certainly can trademark the name, slogan, or logo of your product. If you want to name and brand the product as something different than your company name, you would need to file those separately. (For example, Roomba is a registered trademark of the company iRobot. The actual Roomba itself isn’t trademarked (though pieces of the technology are patented.) The name and logo for Roomba, however, are trademarked.

Your trademark and your company name

Every company must register a trade name, but a trade name does not grant the company trademark rights. People might commonly confuse these terms, but they are distinct. A company can register a trade name that another company has already trademarked.

A trademark is sometimes referred to as a designation of origin. This means that it points to the source of a particular service or product. If you want your company name to be your trademark, and many companies do, you still need to file an application with the US Patent and Trademark Office (USPTO).

Intent to use

So how do you apply for a trademark before your product is market ready? The process is actually quite simple. The USPTO allows companies to file for trademarks under a category known as intent-to-use.

As the name suggests, businesses can apply for trademark registration based on the assumption that they intend to use the mark in commerce sometime in the near future. Once the USPTO approves your application, it requires you to start using the mark in commerce within six months. Alternatively, companies can file for an extension within that six-month window.

If you fail to use the mark or request an extension, the USPTO will consider your application abandoned and will cancel it. If this happens, you will need to start the application process from scratch. This includes paying all associated fees again.

When to apply, then?

What if your product won’t be ready for another two years? The answer is the same as above: register now. You have time on your side, even if you don’t plan to use your mark in commerce any time soon.

The USPTO takes an average of 13 to 18 months to fully approve and register trademarks. If it takes the high end of 18 months, and if your product will be ready in 24 months, you’ll start using the mark within the six-month window. If the application process moves more quickly, you can simply apply for a short extension.

A company’s brand is its livelihood. Don’t risk forfeiting many of your legal rights by delaying trademark application. There are only a few downsides to registering early, but many potential benefits.

Common Trademark Topics for Business Owners


Why is it important to apply for a trademark even if my product is not yet market-ready?

It’s crucial to apply for a trademark early in the product development process to protect your brand. By doing this, you significantly reduce the risk of infringement. Also, it allows you to resolve any potential legal issues related to your trademark before they become problematic.

Can I trademark my actual product?

No, you cannot trademark your actual product. You can, however, trademark the name, slogan, or logo of your product. This is because trademarks serve as a designation of origin, pointing to the source of a particular service or product, not the product itself.

How can I apply for a trademark if my product is not yet ready for the market?

The US Patent and Trademark Office (USPTO) allows companies to file for trademarks under a category known as ‘intent-to-use’. This means that you can apply for trademark registration based on the assumption that you intend to use the mark in commerce sometime in the future. Once approved, you’re required to start using the mark in commerce within six months, or apply for an extension within that timeframe.

Xavier Morales, Esq.

About the Author:

Xavier Morales, Esq.

Mr. Morales founded this trademark law practice in January 2007 with the goal of providing intellectual property expertise to entrepreneurs and businesses around the country. Since then, he has filed more than 6,000 trademarks with the USPTO. You can learn more about Xavier here.

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