How to Protect Your Trademark in 2022

How to Protect Your Trademark in 2023

We’re often asked what’s the best way to protect your trademark. For years the answer was simple: Register it with the U.S. Patent and Trademark Office aka USPTO. However, in recent years the USPTO has come under fire for historically long registration times and allowing waves of allegedly fraudulent applications to clog their systems diminishing the value of U.S. trademark registrations. Worse yet, in the past year they have taken steps to make it virtually impossible for the average person to file a trademark using their online filing system.

by The Trademark Company

updated 04/28/2023 | 4 Min Read

With this in mind, we think it’s a great time to compare the three principal ways to protect your trademark in 2023. In our opinion, there’s a clear winner.

1. Unregistered Trademark

Cost: $0.00

Pros: One of the great misconceptions about trademarks is that you have to register them with the USPTO to have rights here in the U.S. This is simply false. The same law that protects USPTO registered trademarks also protects trademarks that are not registered with the USPTO. Unregistered trademarks can use the “TM” symbol and can be successfully enforced, and routinely are, even against USPTO registered trademarks, in the event of infringement.

Cons: An unregistered trademark is generally only protected where it is being used (i.e., county, state, or beyond) and if you need to enforce it you will have to prove that you have valid trademark rights both in terms of when you began use of the trademark and that it is otherwise entitled to protection (e.g., not merely descriptive, etc.). Of note, an unregistered trademark cannot be used for the Amazon Brand Registry.

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2. Trademark 1.0 (USPTO)

Cost: $599 – $1,599 (On Average)

Pros: Registering your trademark with the USPTO was the traditional way of securing your trademark rights. Before registering your trademark, the USPTO will check to make sure your trademark is available to register (i.e., there are no other similar trademarks on their register, it’s not merely descriptive, etc.) and then issue your certificate of registration if so. Your trademark then appears on the federal register and this can be used for the Amazon Brand Registry.

Cons: On average, it now takes over a year for the USPTO to look at your application. Registration, assuming it qualifies, will take even longer. These are historically high wait times for the USPTO which has seemingly been unable to evolve in our changing global economy. The USPTO has largely and continuously failed to address its shortcomings while simultaneously increasing the barriers for trademark filers to secure their trademarks without professional assistance. The average cost for the USPTO’s filing fees ranges from $350 to $700 per application, fees that are not refundable even if a trademark is not registered. And should you utilize a filing firm or law firm to assist you with your filing, the total cost rises to $599 to $1,599, on average. In short, you pay a lot, possibly for nothing. And by the way, even if a trademark does register with the USPTO it can still be cancelled by another trademark and even an Unregistered Trademark or Trademark secured on the Public Digital Register aka Trademark 2.0 (See Below).

3. Trademark 2.0 (Public Digital Register)

Cost: $199 (On Average)

Pros: Registering your trademark on a publicly searchable blockchain aka the public digital register secures your trademark’s use, and thus rights, in a searchable decentralized record. Trademarks 2.0 are the most affordable registered option with an average cost of only $199. Availability on the public digital register or blockchain provides a deterrent effect placing others on notice of your rights so that they do not adopt a trademark similar to yours. A Trademark 2.0 also can be enforced against registered or unregistered trademarks in federal and state courts. Registration is guaranteed and typically occurs in less than a day.

Cons: Like an unregistered trademark, the trademark is generally only protected where it is being used (i.e., county, state, or beyond) and if you need to enforce it you will have to prove that you otherwise have valid trademark rights (e.g., not merely descriptive, etc.). Finally, Trademark 2.0s have yet to be accepted by Amazon for the Amazon Brand Registry.

Our Pick: Trademark 2.0

All things considered, a Trademark 2.0 is the preferred method to protect your trademark. Because it is registered on the public digital record aka blockchain, your trademark use and rights are secured making it easier and more effective to enforce than an unregistered trademark. The cost is dramatically less than the USPTO option without the hassle and significant delays of a registry run by an increasingly inefficient system. Lastly, your registration is guaranteed as opposed to the USPTO which will take application fees and oftentimes simply refuse to register your trademark without refunding your money.

For these reasons, in 2023 a Trademark 2.0 is the best option for securing your trademark.