Let’s talk about something very important. Naming your products and services. But, before we dig in let me tell you… you’ll probably look at me differently after reading this post. You’ll probably whisper about me behind my back. You may call me names. You might even vow to never return because GOTDAMN I took the joy out of one part of your business that you absolutely love.
I’m okay with that.
I don’t mind being a debbie downer. A killjoy. A downright scrooge. IF it means that I’ve saved you from making a costly mistake. It comes with the job title.
So, one of the biggest mistakes that I see time and time again is when people name their products and services. Most peeps don’t realize that you should actually bring a trademark attorney in at at this point. We’re typically an after thought anyways so I get it. I forgive you.
So, even though I know you’re creating hot ish without me I want to share one huge secret with you. PSA: I usually only give this type of insider information in exchange for one of my favorite snacks like… a Coffee Frappuccino, David’s Ranch Sunflower Seeds, Sour Gummy Worms, Talenti Mediterranean Mint Gelato, and Nuero energy drinks. But, I like you. So, I’ll deal.
But first, you may remember my post on why Legal Zoom is a no-no for your trademark registrations (if not, check it out here)? One huge benefit of working with a personal, trademark attorney is that we counsel you on whether the names you’re looking to register can legally be protected. We make sure you’re actually putting in an application that will get approved and give you maximum protection.
Here’s my little secret…
The one big mistake you’re making when naming your products or services is that you’re giving them descriptive names. You are naming it in a way that describes exactly what you do. And, you cannot register a federal trademark for a descriptive name.
There are two categories of names that are considered descriptive:
- Names that describe what you do or sell
- Names that describe your geographic location
I know you think, “Hey, I want to make what I do or sell as clear as possible for my audience.” It makes sense but from a legal perspective it won’t hold up. Interesting enough, this is one of the few times where the creative branding world and legal world jive. A brand strategist may want you to give your product or service a more creative name, something attention grabbing that will really make you stand out. Trademark law actually supports that.
One reason why you can’t just call your [insert your product or service] exactly what it does is because trademarks have to be distinctive. It takes away from the distinctiveness of it if you’re simply naming it after a plain-as-day feature or benefit.
I’ll give you two examples here:
I could have named my law firm The Law Firm for Creative Entrepreneurs but I didn’t because I knew that the United States Patent and Trademark Office would probably determine that this name was descriptive. It precisely describes the service that I provide and who I serve. It’s as literal as you can get. Instead, I went with Creative Genius Law. This name is more abstract, and doesn’t have a firm literal interpretation. “Creative Genius” can be interpreted many different ways. I was able to get the federal trademark for that name. Do you see the difference there?
On the flip side, I have a free course called Protect Your Brand in Cyberspace Masterclass. This was the original name I rolled with for one reason — I was presenting it at conferences and wanted a super clear name so that attendees wouldn’t need to do a bunch of guesswork about whether it was something they needed or not. When I recently relaunched this as a free online masterclass I kept the name only because I couldn’t think of a better one. I didn’t want my momentary creative struggle to delay me from sharing the course with my peeps. Getting it out there and helping you as soon as possible was more important to me. BUT, I know that if I want to protect this name with a trademark then I’ll need to call it something else because the current name is (dunh, dunh, dunh) descriptive as hell.
One thing I want to mention before I leave you (and because I don’t want to paint an incomplete picture). If you attempt to register the trademark for a descriptive name, the USPTO examining attorney may give you the opportunity to amend your application, and apply for the supplemental register instead of the main register (called the principal register). Trademarks on the supplemental register look exactly the same from the outside looking in except they don’t give you the same legal protections as a principal registration would. In fact, if you needed to defend your trademark in court, you’d face serious challenges. I breakdown this process in detail for Legal Quick Start and trademark clients who may be dealing with a descriptive name.
For now, I have a short assignment for you. Audit your product and service names that you want to own as a trademark. See what’s descriptive and determine how you can rework them.
That’s it, peeps.