ο»ΏBusiness Fire Drills, Fire Drill 18: Before a Brand Name Becomes a Problem
Clean transcript (light cleanup of the auto-transcript: speaker labels removed, name and obvious mis-hearings fixed; wording otherwise as spoken)
You bought the domain, the logo is done, you claimed the Instagram handle, you've got three months of content built and your name feels perfect. Then one day, an email lands or a customer asks, are you connected to that other company? And you realize you never checked whether the name was actually yours to use. That's a business fire drill and we run it before the fire starts. I'm attorney Tamsen Horton. I have been putting out business fires since 2011. I want to make sure you don't get burned. Your business doesn't get burned and nothing is burning down around you. Today's drill is fire drill number 18, before a brand name becomes a problem.
Before we run the drill, let me tell you what we're actually talking about. A trademark is a brand identifier. It's anything that tells your customers, this comes from me. A name, a logo, a tagline, a color, in the right circumstances, even a sound or a scent.
Today, I'm sticking with names, but the idea is the same for all of them. So if you have a color that is your brand identifier, I'm just saying name throughout this episode, but it covers your color.
And here is the whole point of a trademark. It keeps your customers from being confused. When someone sees your name, they know who is behind it. When another business uses something too close, people get mixed up. Trademark law exists to prevent that mix-up.
Now, why does this matter more right now? Because anybody can make anything look phenomenal, a beautiful logo, a great name, a polished website, and you can't tell just by looking whether there's a real business behind it or a real person. And this has happened with the explosion of AI and content being everywhere rampantly. So what are people gonna hold onto? They're going to hold onto and search out recognition. They want to know they're dealing with the real company that can deliver the real good or service that they can trust, oh, that is a person. It's not just a good looking video that is created by a prompt, but there's nothing behind it. That's why brand recognition is becoming more and more important because it carries that know, like, and trust factor.
Now, let me be really, really clear about what this episode is. This is an awareness episode. I cannot cover all the intricacies of trademark in one episode. You'd be here all day. And honestly, I wouldn't even begin to try to do that. What I can do is put this on your radar so that you know when it matters.
If you wanna go deeper, I have an abundance of resources. Again, I've been talking about this for years. There's three specific ones in my legal store. S4 Branding, How to Brand Like a Lawyer, that's for before you're committing to a name or in the midst of committing to a name or because you listen to this episode and you're like, oh my gosh, am I okay? Is this gonna work? What am I gonna have to do? That's S4 branding. It's how to think about a name, again, broad umbrella of trademark, like a lawyer so that legal doesn't eat your creativity alive. Taming trademarks, that walks you through completing an official trademark application with the United States Patent and Trademark Office step-by-step. That is for when you are committed to, yes, I want to start formal legal registration. And, but I'm unique, that one is for when a trademark application gets denied and how to handle it. So you can find all of my work surrounding branding and how to protect what you're building your business around. It's all on my portfolio page, which is TamsenHorton.com backslash blog. The links to everything are in the description.
Now, here's the part that I want you to hear loud and clear. You run this drill at the idea stage, Not after the launch, not after the logo, not after the letter. The moment you're coming up with an idea and you think, oh, I'm going to call it this. That's the alarm. Alert, alert, alert, alert, alert. That's when we run this drill. A new business, a new program, a new offer, a new framework, a new podcast, a new everything. The name hits you in the shower, you get excited, and you want to go buy the domain. Okay, go by the domain, but please stop right there. That's the moment. That is the moment I want to brand. Ooh, that works really well. Fire, branding irons, and brand. Voila. Look at that. That just hit me. That's the moment. I want to literally brand this into your brain that that is when you pay attention. That is when you hear my voice. That is when the fire alarm is going off in your head. Because business moments just like this are predictable. Your panic is optional. This is the drill that you want in place before the fire starts. So please keep that in mind as I walk you through the rest. Everything we do today is something you do before the fire. And if you're already past that point, I've got you too. I'll show you exactly what to grab.
Let me ask you a really important question. Why do you have a smoke detector in your house? So you know about the fire before the curtains go up and the house burns down. Me too. Now, here's my follow-up. Where is the smoke detector in your business? It's just as important. You live there. You occupy that space. It's supporting you financially. You probably don't have one because nobody told you that you needed one. So guess what? I built one for you. It's 11 questions. It takes about three minutes and it shows you which fires your business is most likely to have, including the ones that are already smoldering. All you need to do is go to the link in the description and you can activate the smoke detector.
So let's say the smoke detector goes off. Well, that's your alarm. Maybe it's telling you something is smoldering around a name you already use. Great, it did its job. That's what it is supposed to do. Now we run the drill. First, here's what that alarm looks like, sounds like, and acts like when it does first show up in your business. And ideally, the alarm goes off in your own head at the idea stage. But if we skipped that part, if that has already happened, then it's not, it's going to sound differently. It's going to be an email from someone you've never heard of saying your name is too close to theirs, or it's a customer who asks if you're affiliated with another company, or you go to register your business name, apply for a trademark or set up an account and find out somebody already has it. Or you search your own name online and a different business is showing up first. The timing is going to be inconvenient. Absolutely. It's going to happen after the logo, after the website, after the content, after the launch. That's what makes it expensive. It's what makes it stressful.
And now that we've heard the alarm, here's the question that decides how this goes forward.
Are you reacting to that alarm or are you responding to it? At the idea stage, reacting looks like this. You assume that because the domain was available, the name is safe. You assume that adding a word, changing a letter, or switching to a.co makes it a different name. You spend money on the logo, the merch, and the content first and check later. If the fire has already started, reacting is ignoring the problem and hoping nobody noticed or firing back an angry reply to a letter before you understand what it actually says or posting frantically in a group of 50,000 of your closest entrepreneurial friends. Responding is knowing what you actually have a right to. It's having your search documented. It's knowing how central this name is to your business and it's getting an attorney's eyes on it before you make any big move.
So let's run the drill, D-R-I-L-L. Remember, we run this before the fire. I'll give you each letter at the idea stage and then what changes is smoke is already in the air.
D, don't react and in this case, we don't rush. A basic search costs far less than a rebrand. Don't spend money on a logo, a domain, merch, or months of content until you've checked and cleared the name you want to use, you can use. And if a letter has already arrived, do not reply today and don't post about it. We covered that in fire drill number two before a cease and desist arrives. It is also linked in the description.
R, record everything. Write down the searches you ran, where you ran them, and the date. Write down the date you started using the name and how. Digital is completely fine, but for anything that could bring down your business, keep a paper copy too so that a digital lockout doesn't take away your only set of keys.
I, identify the real risk. How central is this name? Is this brand identifier? Is it the name of your whole business, your flagship program, or a framework you've built started building your reputation on? Or is it a one-time workshop? And who else is using something similar in a business like yours? That's the question. Trademark is about confusion in the marketplace. It is not about whether two names are identical. Dove chocolate and Dove shampoo can completely coexist.
L, lead with calm. Weigh the real cost of a fight against the real cost of a rename. Sometimes the smart move is to change a name that's three months old rather than try and defend it for three years. And before you decide on anything, please enlist the help of an attorney. They will be worth their weight in gold because they're trained to do this. They know what questions to ask, and they will help you keep the emotion out of it.
L, lock in the lesson. Build brand clearance, naming clearance into how you launch anything new permanently. Every new business program or framework gets checked before it gets a logo or colors or website or an Instagram series before any of that.
One thing that trips people up is that a trademark is an ownership of a word across all of business. It's tied directly to the kinds of goods and services you sell. That's why two completely different companies can use the same word without a problem. So the question isn't, is someone using this word? It's, is anyone using something similar for something similar to people like my customers? You can get some rights just by using a name in your business. However, if you want the full legal protection and legal permission slip that you can then use to knock out other people from using your name, you do need to go through formal legal registration. This is jurisdiction specific. So if you're in the States, it's the United States Patent and Trademark Office. If you are in, and that goes, you want to make sure that you're registering where your customer base is. So it is why most people will register with the USPTO because they're selling in the States. But there is an Australian trademark database. There is a European Union trademark database. It is jurisdiction specific and you may or may not need to register in some or all of the jurisdictions.
Here is my test for how much effort a name deserves. I've called it the tattoo test. If you'd never get this name tattooed on your arm like a one-time workshop or a short-term promotion, a quick search is probably going to be enough because if you accidentally miss something, renaming a workshop is no big deal. You change the name on a few landing pages. You change some email sequence names. You might have to reshoot some videos, but that's very different than if you've, the brand identifier, you've built every layer of the business around it. So that is where when people will contact me and be like, oh, I got to trademark this. And I'm like, It's a workshop. You're not building your business around this. So let's make sure that we're not going to step on someone's legal toes doing it this way. However, you're not likely going to want to move through formal legal registration for that. That's just, it's not, they're different levels. They're absolutely different levels.
Also, even if you have the domain, that doesn't mean it's a trademark clearance. Those are completely different areas of the law. They are handled by different areas of the law. So domains, social media handles. In fact, that's always in S4 branding, step number two, which is searching. This is when I have people look for all the breadcrumbs. If you have a name that you love and you go on TikTok and the name's taken, that's a ding, ding, ding, ding, ding. Let's see where this breadcrumb takes us. Or you find a YouTube channel with the name, ding, ding, ding, let's follow the breadcrumb trail. Oh, look at that, it came up in a Google search or a chat GPT search. Okay, let's see where it takes us. So even if you get the domain or what I often see happen is someone has a great idea and they go to buy the domain and the.com isn't available, but there's all kinds of other extensions now. So they just buy another extension and they don't follow the breadcrumb trail. You're going to want to follow the breadcrumb trail, which is why in S4 branding, searching is step two out of the four. It's very important. When you decide, if you decide that, yes, I have a name, yes, I want to register it, then you can move forward with an official registration. Doesn't mean you're going to get it. It just means you can move forward. But if you've done your homework ahead of time, which is S4 Branding, Taming Trademarks, and But I'm Unique, more than likely you will be able to achieve your end goal of getting your trademark.
Now, build your fire extinguisher before the fire starts. Because once the fire starts, we are not going to the store to buy a fire extinguisher. We are calling in the professionals.
One, name your brand assets, your business name, your signature program, your named frameworks. What would you count or say qualifies as a brand asset.
Two, search before you build. Search the trademark office's database. Search the web. Search social platforms. Search similar sounding names in your industry. Again, trademarks are there to alleviate consumer confusion. Two things are too much the same. They don't get to occupy the same space.
Three, don't treat an available domain as proof that you can use the name.
Four, for anything core to your brand, investigate registering it. Do I need to do this? That is step three in S4 branding, which is secure. You may not need a trademark. I wouldn't need a trademark for my name. Now, if my name were to become like an Oprah, like a Martha Stewart, like a Marilyn Monroe, that can become a brand identifier. But Tamsen Horton, as it is today, is not a brand identifier. I cannot register my name. They wouldn't give it to me. But the fact that people have their names registered, it's because that Oprah is a brand. It's also the woman whose name it is, but it is a brand recognition because it is a brand identifier. Martha Stewart is a brand identifier, brand recognition, and a woman. They are two separate things. So investigate, do I mean registration? If yes, how do I move forward on that?
Number five, keep dated records. When you choose the name, what you searched, when you started using it, the very first thing I will do when I come up with an idea, because as an entrepreneur myself, I know creativity, it strikes, It's exciting. It's got energy. You're like, oh, this is awesome. I'm going to do this. It's part of what makes us really, really cool individuals that do amazing things in the world. The very first thing I will do is send myself an email and a text message. Hey, thinking about using this idea, this is where it's coming from. I'm going to go run a trademark search on this, a name clearance search on this. As part of as I'm moving forward with the idea, and like most of you, not all my great ideas ever saw the light of day. They didn't need to see the light of day. But that is part of my process. It is branded into my brain. Idea means email, means text message. Create my paper trail immediately with the idea that has come to me. The other part, which we've talked about this before, is that a name problem, it's never just one aspect. It's multiple things that can combust and explode at once, which is why we want to run these drills before the fire breaks out, because there's just far less damage, far, far less damage.
If your smoke detector is already picking up smoldering, or you've already got the letter, here's what you grab. Remember, the drill doesn't change. You still run it. You're just running it, with dogs barking in the background, with smoke in the room.
Do not reply to anything yet. It might seem like it is the most important, most scary, most whatever thing. Do not hit reply. Do not under any circumstances. Save the letter or message exactly as it arrived. Screenshot where and how you're using your name with dates. Pull your records. Start writing down the ones that you don't have and get an attorney's eyes on it before you respond or post anything. Ideally, you don't post anything until we've already reached the locked in the lesson stage. And there's plenty of entrepreneurs that have shared their stories of, whoops, I used something I wasn't supposed to.
One that has stuck with me for years was Pat Flynn, before he ever did Smart Passive Income, he created an L-E-E-D study guide or exam study something, and he put LEED, L-E-E-D, in the name. That was a protected and registered trademark. He couldn't do it. So he got a cease and desist, and he had to change the name of his program. It's very early in his episodes. I want to say it's episode eight in Smart Passive Income, if it's still available. But talk about it after you have resolution. Please do not talk about it while you are going through it. It doesn't help anything. It makes the work much harder. It makes what your attorney is able to do much harder. So please, please, please, please. That's why the first step of S4 branding is silence. Keep your mouth shut. it's really important as you're looking at the fire then you go okay is the name worth the fight is this a fight not just that I can win is it a fight I'm willing to enter and invest the time money energy and effort to come out on the other side that is very facts and circumstances dependent and it is where having the wisdom of a business attorney, of someone who understands, okay, this is what you're trying to achieve. Here are the ways through it. We go this way, it has this pros and cons. We go this way, it has this pros and cons because we're not doing any of this in a bubble and time, money, energy, and effort, there are times that even when I've had a client who I knew once we got to the end of it, we would win. We were on the legal. We had everything behind us. They still had to pay me. They still had to invest the time, money, energy, and effort to get to the destination. And when we looked at it from an objective standpoint, knowing the client's objectives, what was going on, we've made the conclusion it's not worth the fight. We're going to come out bigger and better. Just watch us. Because that's also a valid, completely valid choice. A thousand percent.
Now, let's come back to our smoke detector because remember, you live in your business. It's supporting you financially. Where is your smoke detector? If you're not sure, that's exactly why I built one for you. And to install it, to activate it, all you need to do is go to the link in the show notes. Answer the 11 questions. It takes about three minutes and you will see. It will give you exactly what is already on fire, what is likely to catch fire, what might be smoldering.
Which brings me to your next right decision. You have three options.
One, do nothing. You search your names, your brand assets are documented, you know which ones are worth protecting. You're good because you've taken care of this.
Number two, put the drill in place. That's right. If you've ever picked a name and not done a clearance where you have specific verifiable evidence, I do not need, I'm not committing trademark infringement. I don't need to register this name. And this is something I want to build my brand recognition and my business around. You need to put this drill in place and you need to do so now.
Number three, send this to a friend. If you're in a mastermind with someone or a coaching program, we're all creating ideas. And when every time I record something about branding, if I had to pick a topic that is just exponentially more important to me, I might land on branding and trademark because it touches everything. It touches every landing page, every form, every email sequence, every video, every reel. The name just keeps showing up. And so when I've been a part of, when I've watched people commit legit trademark infringement and have to rip out everything, It is such a massive hit. And to me, it's an unnecessary hit. If you're listening to this right now, there's a reason. You are hearing this for a reason. Maybe it's you, but maybe it's for a friend. Maybe you're the one who could save someone else from having to rip out something that means the world to them that they are so incredibly invested in. Any of these choices valid, pick the one that's right for you today.
I do have some free homework for you. Write down the names you're building your business around. Next to each one, write down whether you searched it, whether it's protected, whether it should be. That's the best place to start.
Now, that's a lot. and like I said, this is just awareness. This is a broad stroke. So if something in this, you were like, oh, I wonder, just go to TamsenHorton.com backslash blog. I call it the portfolio. So you'll see it called the portfolio, but the URL is the blog. The link is in the show notes. And you'll see there's all kinds of incredibly good, incredibly solid, incredibly take you in the next right step direction for branding in your business. Because business moments are predictable. Your panic is optional. Please run this fire drill before the fire alarm goes off.
