When To File Your Trademark!

I’m going to be “Very Demure… Very Mindful…” in telling WHEN you should file your trademark. Get out the notepad and take some good notes because the trademark world is messy right now hunny, whew!

We all know Jools Lebron started the saying “Very Demure Very Mindful” which went viral on TikTok. Every lady was saying it and every man was tired of it, BUT the trademark world is just getting started with it. Most times when we say something, we have no idea that it could go viral or even have the intentions for it to go viral. HOWEVER, even if you don’t expect something to go viral, but you want it to be a thing, you should consider a trademark. The question is, When Should You File The Trademark?

Most people think the trademark should be filed AFTER the thing is popular, after an announcement and people seem interested, or even after they’ve made money off of it. I couldn’t disagree with this anymore than I already do.

Have you noticed that before celebrities announce a new product such as Beyonce with Cécred or SirDavis, that the trademark application has already been filed? It is because trademarking is a part of business. It is a part of betting on yourself and being committed to the process. You should always aim to protect your brand BEFORE you tell it to anyone you don’t trust (or perhaps anyone who hasn’t signed an NDA), and BEFORE you go public.

Now I get it. It is not as simple as saying you should file your trademark before you do anything. Further, comparing the average person to Beyonce is insane because the resources are just not comparable. I will say this though, if you are going to invest in anything, it should be the investment to a trademark attorney to trademark your brand and protect you from what Jools Lebron is going through right now. There also may be resources near you that could help you get a trademark pro bono or free of charge if you qualify. In any event, you should want to protect your brand first because without it, you are back at scratch, coming up with a new brand because some has trademarked it before you.

Now that you know when to file your trademark, you may be asking yourself “well what the hell happens if I don’t do this and someone files before me, but I was using it before them?” That is honestly when it gets increasingly difficult, BUT NOT IMPOSSIBLE, to fight for your rights to the mark. In Jools’ case, she started a saying that went viral. She was the first to use it and make it a thing. However, someone else trademarked it and filed a 1B or intent to use application. Now this means they are not using it in commerce yet, but they intend to. Jools also wasn’t using the saying in commerce, even though she was first to use it. At this point, Jools have a couple of options where she could try to establish a common law trademark, or file a Notice of Opposition with the Trademark Trial and Appeal Board within 30 days of the mark being posted to the Trademark Gazette.

Honestly, trying to establish a common law trademark for a phrase that is so widely known and viral could prove pointless because so much of the damage is already done. Further, I’m not sure that filing for opposition would be worth it at this point because the saying has become so popular and widespread that it could be deemed generic by the USPTO at this point. I mean the saying has already made its way to the category list of TV shows and movies on Netflix. This is so involved and unfortunate, but I will not bore you with all of it in writing.

I will say this though: You should always seek the trademark sooner than later. In an earlier post, I warned you all that there are IP trolls who wait on things to go viral and try to be the first to trademark, in hopes of making money off of it by selling or licensing it. Stay ahead of the game and remember, to build wealth and play the game, we are going to have to sacrifice, make investments, and play the game how its intended to be played. Take your cue from those who don’t make a move without securing their IP FIRST, because they know that the IP is the real asset. Honestly though, I feel so bad for Jools and so many others who don’t have the knowledge or the resources to invest in themselves or even know what steps to take. Try to be open minded in approaching your business and at least schedule a consultation with an attorney before dismissing the idea all at once. Most attorneys offer payment plans and will work with you to ensure you are protected. Good luck you guys, work smarter and not harder.