The first time most founders think about trademarks is when their lawyer asks "have you filed a trademark on the name?" By then, the name has been on the website for six months, the domain has been bought, the social handles are set up, and the founder has emotional attachment. Then the search comes back showing a conflicting trademark in their category. Now they have a problem.
This post is the playbook for doing the trademark work upfront. When changing the name is still easy. Not legal advice, not exhaustive, but the practical map most founders need.
What a trademark actually does
A trademark gives you exclusive rights to use a name (or logo, or other identifier) in commerce, within a specific category, in a specific geographic region. Three things to understand from that:
- Category matters. "Apple" the computer company doesn't conflict with "Apple" a music label (it did once, famously, but eventually they worked it out). Trademarks are category-specific. You're protected within your space, not across all spaces.
- Geography matters. US trademarks protect you in the US. They don't automatically protect you in the UK, EU, or anywhere else. If you operate globally you need to file in multiple jurisdictions.
- Use matters. You generally only get trademark protection for marks you're actually using in commerce. Filing a trademark you don't use is hard to maintain.
The order to do this in
The right order to vet and protect a brand name:
Step 1: Knockout search. Before you fall in love with a name, do a free check on the USPTO database (uspto.gov, search "TESS"). Look for direct matches in your category. If you find a registered trademark in your exact category that matches your name (or is confusingly similar), eliminate the candidate. This takes 5 minutes per name and saves months of regret.
Step 2: Domain and handle availability. If the knockout search passes, check if the .com or your acceptable alternative is available, plus the social handles you need. This is fast and cheap.
Step 3: Broader trademark search. Before you commit, run a more comprehensive search. The USPTO TESS tool is free but limited. Tools like Markify, Trademarkia, or your lawyer's database show more variants and adjacent classes. Look for: same name in adjacent categories, similar-sounding names in your category, similar-looking names that could cause confusion.
Step 4: Common-law trademark search. Trademarks don't have to be federally registered to have legal weight. A business in your category that has been using a similar name in commerce without filing can still cause you problems. Search Google, look on Linkedin, check business directories. Anyone using your candidate name commercially is a potential conflict.
Step 5: Buy the domain and secure handles. Once you've cleared the trademark searches, lock down the .com and the social handles. Cost is low; the alternative is finding out later that someone else claimed them.
Step 6: File the trademark application. You can do this yourself via the USPTO website ($250-$350 per class). Many founders prefer to have a trademark attorney do it ($1,500-$3,000 including filing fees) because attorneys catch problems you'd miss, file in the right classes, and handle the back-and-forth with the trademark office. Whether to DIY or hire depends on budget and complexity.
Step 7: Use the TM symbol while pending. From the day you start using your mark in commerce, you can use the ™ symbol (or &sm; for service marks). This signals "we claim this as our trademark" even before federal registration is granted. Once the trademark is registered (typically 8-12 months later), you can use the ® symbol.
Common mistakes founders make
Mistake 1: Skipping the knockout search. "It's just a name, I'll deal with trademarks later." Later means after building 6 months of brand equity and then having to start over.
Mistake 2: Searching only the .com. "The .com is available so the name is fine." A registered trademark in your category trumps an available domain. You'll lose the trademark fight even if you got there first on the domain.
Mistake 3: Filing without understanding classes. The USPTO has 45 classes of goods and services. Your trademark protects you within the classes you file for. File the wrong classes and you're not protected where you actually operate. This is one of the reasons hiring an attorney is often worth it.
Mistake 4: Assuming international protection from US filing. If you sell to customers in the UK and EU, US-only trademarks don't fully protect you. Founders often discover this when a copycat emerges in another country and they realize they don't have grounds to stop them.
Mistake 5: Not policing the mark. Trademarks can be weakened or lost if you don't actively enforce them. If you see someone using your mark and don't act, your future enforcement is harder. This doesn't mean suing everyone. It can mean a polite letter. But ignoring infringement is dangerous.
What to do if your dream name has a trademark conflict
Three options:
Option 1: Pick a different name. Cheapest by far. Painful emotionally but easy practically.
Option 2: Negotiate a coexistence agreement. If the conflicting trademark is in an adjacent (not directly competing) category, you may be able to negotiate a coexistence agreement where both businesses agree on their respective scopes. Costs legal work and potentially licensing fees, but lets you keep the name.
Option 3: Acquire the trademark. If the holder isn't actively using it or is willing to sell, you can buy the trademark. Costs vary wildly. Anywhere from $500 to seven figures depending on the situation. For most founders this isn't worth it; for some it is. Have a lawyer handle the negotiation.
The 30-minute pre-commitment check
Before you put any brand name on a website, run this check:
- USPTO TESS search for direct matches in your category: 5 minutes
- Google search for "[name] [your category]": 5 minutes
- Check the .com and 2 acceptable alternatives: 5 minutes
- Check Twitter, LinkedIn, Instagram for the handle: 5 minutes
- Check business name databases in your state: 5 minutes
- Sit with the name overnight before committing: free
Thirty minutes of work prevents months of regret. If the name passes all five checks, you have a candidate worth investing in. If it doesn't, pick a different candidate and run the check again. Most founders skip this entirely; the ones who don't avoid the most expensive brand mistake in early-stage businesses.
One note: this isn't legal advice, and you should consult a trademark attorney for your specific situation. The point of this post is the order of operations and the questions to ask. The legal specifics depend on your jurisdiction and category.
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