Whether you're curating and creating content on your own website or within a content sharing community, you are a brand--even if just for the business of acquiring eyeballs.

Etsy sellers, fashion illustrators, influencers, fashion retailers...if you're producing unique content on a regular basis, we want your brand to be protected from use or theft by competitors and copycats. We reached out to Nicole Swartz,  lawyer and founder of Sprout Society to share the same expert legal advice she gave our brand.

Here's what Nicole at Sprout Society has to say about protecting your brand identity:

The best way to protect your brand identity is with a trademark. It ensures that you're the only one who can use your brand within your product category. Without a trademark, there's not much you can do to stop competitors from using your brand.

tilt shift lens photography of gray sachet
Photo by Jonathan Simcoe 

What is a trademark?

Trademarks regulate what name, logo, and tagline you can use. If there's a similar trademark in your industry already, then you are legally prohibited from using that branding element. If you use it, you'll likely be sued and forced to pay monetary damages.

A lot of company names and branding elements are already trademarked. As the number of entrepreneurs grows, so does the number of trademark applications. Trademark applications are up 10% this year and there are currently 800,000 waiting to be reviewed already. That means a lot of company names are already registered.

You could be using a trademarked name already and receive a cease + desist letter soon. Or, another company could file a trademark application for your name and own the rights to use it nationwide. To avoid the legal drama, you need to lock up your brand with a trademark. Here's how:

1. Review your brand

I know you love your brand! But, a lot of words can't be protected with trademarks. If you can't trademark your brand, then anyone can sell your same products with your same company name. That doesn't help your company stand out in the marketplace and leads to lost customers.

You can't trademark:

Generic words: The common term for the product. Example: Apple (fruit), Coffee

Descriptive words: Words that describe the ingredients, quality, use, location of your product/service. Example: Peach Body Scrub, California Candles

Supreme sticker lot
Photo by David Lezcano

You can trademark:

Suggestive words: Suggests qualities of product but does not describe them. Example: Birchbox, Netflix

Arbitrary words: Generic word applied to something other than common meaning. Example: Apple (computers). Dove (soap)

Fanciful words: Made up with no common meaning. Example: Google

If a brand is already trademarked, then you can't use it.

The problem? There are millions of trademarks already. The number of trademark applications is skyrocketing in recent years, especially in popular areas like apothecary or apparel products. It's especially difficult to trademark a one word company name, unless it's very unique, because of how many trademarks already exist.

A trademark search allows you to see if your company name is too similar to an existing company. It's not as simple as inputting your exact company name and hitting search. You'll need to search for similar sounding words, similar spelled words, alternate pronunciation of words, complex words, foreign translations, and words found in other trademark registers. Once you get all the necessary search results, you'll need to analyze trademark law and policies to determine if any conflicting results will hold up your application.

It's best to call in an expert to run your trademark search. It needs to be done correctly to make sure that your brand is available before you begin a trademark application.

3. File your trademark application

Trademarks give you the exclusive rights to use the name nationally. So if someone else registers your trademark, they’ll own the rights to your name nationally. You'll only be able to use it in your geographic region (typically your city). That's not ideal!

Think about how many brand pieces feature your company name: your website, social media, business cards, products, marketing materials, press links, inventory, etc. If you want to operate nationally, you'll need to change all of that, pull back all inventory with the brand on it, and possibly pay monetary damages. You'll lose customers, money, and valuable momentum.

So, if you’re creating a strong brand, you need to trademark it now!