If you want to make money homesteading, there are two things you need to know about protecting your brand:

1. You need to brand your animals correctly (register your literal brand), and
2. You need to register a trademark for your business name and logo

When we think of branding and homesteads, our minds usually go to livestock branding. But today, we are talking about something a little different: trademarking your homestead to build and protect your business’s brand.

Your brand is made up of all the elements that distinguish your homestead business from the competition. Building a brand and a reputation takes a lot of time and money. That’s why it’s more than frustrating when someone comes along and copies your hard work.

For example, another business could start using your intellectual property such as your business name or logo. Without a trademark, there is nothing you can do to stop them. It’s even worse if that business decides to trademark a similar name to yours. They could send you a cease and desist letter, forcing you to change your brand.

Protecting your homestead business’s intellectual property is one of the most important steps every homesteader needs to take. Today we are going to break down exactly how to use a trademark to protect your homestead business, including:

• What do you need to do to keep your homestead business name?
• What is a due diligence search? Why is it important?
• How to choose a good name for your homestead business
• What is a trademark?
• How do you know if you need to trademark your homestead business or not?
• When should you start the trademarking process? 
• What does the trademarking process look like?

What do you need to do to keep your homestead name?

If you want to keep your homestead business name, you need to know how to trademark your homestead.

Why: It’s not something that’s usually on too many people’s radars at the beginning. I want you to stay a step ahead in the game. Basically, unless and until you get a trademark, you don’t own your homestead business name. 

This means if somebody comes along and thinks your business name is great, they can force you to change your name. It doesn’t really matter how long you’ve used it or how much brand identity you’ve built around it. Or worse, they can sue you for infringement.

In short: do you want to own your brand name? You have to own the trademark first. Reach out to a trademark attorney at paigehulse.com/contact

Before you choose your business name, run a due diligence search

This is the most important step that you need to take from this article. Until and unless you run a due diligence search, you are not guaranteed rights to that name. Even if you’ve had a business for years.

(Already using your brand name? Not to worry, it’s never too late to run a due diligence search.) 

What does that really mean, and why should you care? In other words, if someone chooses a name similar to yours (it doesn’t have to be the exact same name, mind you), they could register their trademark before you do. Then, they could send you a cease and desist letter and force you to rebrand your entire business.

When it comes to trademark names, it’s generally “first come, first serve.” If you wait too long to trademark, you can lose your rights to your name. However, if you act quickly, you can secure your brand’s legacy. 

Then, there are those other instances, where you go through the branding process, you use your name in commerce for months, maybe even years, and then you decide to get around to trademarking. Except, when you (or your lawyer) run the due diligence search, some similar names arise, but you decide to trademark anyways. 

Beware, this act of filing your trademark application puts those similarly-named businesses on notice, and they could oppose your application (because savvy businesses have a team of lawyers watching what trademarks get filed.) Rather than just oppose it, they could follow it up with threats of litigation, and sometimes, will wind up “settling” with you for a “nominal” 5-figure annual licensing fee.

The earlier you run a due diligence search for your homestead business name, the more likely you are to avoid these legal issues. So, what goes into a due diligence search?

How to run a due diligence search 

First, a true due diligence search means more than just searching for your business name on Google or social media channels.

A real due diligence search is an extensive search that an attorney runs before filing a trademark application. An attorney who is well-versed in trademark law will be able to comb through databases to find names that aren’t just the exact same as yours, but names that are just similar, too. 

Like I said before, if your name is confusingly similar to another business name, that business can legally force you to rebrand your homestead business with a new name. 

In other words, a due diligence search helps you avoid wasting time and money on branding and building name recognition, only to fall prey to arguably the most common pitfall in trademarking.

To run a due diligence search, your best course of action is to hire an intellectual property attorney to run the search for you, so that the attorney can decipher the results for you.

How to you choose your homestead business name

Here are a few things you need to know about choosing your homestead name:

1. Until you trademark your name, you do not own it. This means that until you trademark your name, anyone else who trademarks it can force you to rebrand. 
2. If you unintentionally copy someone’s business name (or choose a name too similar), you are inviting a lawsuit to your door. This is why you run a due diligence search first
3. Make sure your name is distinctive, not generic or descriptive.
4. When brainstorming names, think about what experience your homestead business will offer or what you want potential customers to envision when they hear your business name.

Take your time with this; it can be hard to find the perfect name for your homestead! You can find more in-depth naming advice here.

What is trademarking?

A trademark is any word, name, symbol or device, or any combination thereof, used, or intended to be used, in commerce to identify and distinguish goods of one manufacturer or seller from others, and to indicate the source of goods or identify products or services to consumers. 

To put it simply, trademarking is a method for protecting your brand by distinguishing yourself or your products from other businesses and their products.

How do you know if you should trademark your homestead business name or not?

The only exceptions for NOT trademarking your business name are:

• You can’t trademark your last name.
• You can’t trademark a name that’s too “generic or descriptive.” 

By definition, generic trademarks are descriptive trademarks that cannot distinguish the owner’s goods and services from another company’s, or designate an origin. 
For example, I see this most often when an entrepreneur turns a service into a product, and calls it the “___ Shop”. For example, the “Law Shop” or the “Venue Shop”, who sell products only within the specifically named industry, or only a specific type of product or service. These types of names simply do not (and cannot) describe the company with specificity. A generic trademark is one that describes the class of goods or service itself and nothing more.

Ok, so if my name isn’t generic or descriptive, I should trademark it?

Yes. Here’s why:

• You can spend years building a brand identity and valuable SEO around a name…and then someone with a similar name (remember, it doesn’t have to be identical) could come along and send you a cease and desist, forcing you to rebrand.
• Worse, they can sue you and charge you a hefty annual licensing fee.
• You’ll lose all that SEO that takes months to rebuild.
• The time and money you spend rebranding could have been saved or invested in your homestead business.

Trademarking your business name at the get-go can save you a devastating blow to your homestead business later.

When is the right time to start trademarking your homestead?

Frankly, as soon as possible.

It’s even possible to file for your trademark 6 months before you launch your business! That is what I did with Fairway Stables™. I knew I wanted to start this business without worrying about other potentially similar names out there or other companies who could come along and force me to change my name. 

So really, the answer is: as soon as humanly possible. The #1 mistake I see clients make is falling in love with a name and just putting their branding on everything. Sooner or later, a cease and desist is likely to wind up on their doorstep–and those are not easy cases to win.

The earlier you claim ownership of your name by trademarking it, the more trouble you avoid down the road.

As soon as you know what your business will offer, and you can produce evidence (such as website screenshots) of it, it’s time to trademark.

If you’re reading this, and your business name is anything other than your personal name, reach out to begin the due diligence process now. This will at least help you determine whether or not you can continue using the name, or if you need to start brainstorming new ones.

What does the trademarking process look like?

If you hire a trademark attorney to file your trademark for you, the process will be very simple! One thing that’s important to note: anything that involves the federal government is just going to take awhile. I tell most of my clients to expect the process to take about 9 months. 

And yes, it is possible to register on your own. However, if you try to go it alone, your chance of trademarking successfully drops by appx. 70%. And, companies prey on individuals who file without the help of an attorney, often sending scam letters that look extremely realistic, fraudulently stealing thousands of dollars. 

When you hire an attorney to handle the trademarking process for you, they will be handling and monitoring the following steps (outlined on the USPTO website):

• Collect all of the information needed for the application
• Determine the widest net of protection they can create to protect your brand name by choosing the right classes
• File the application with the United States Patent and Trademark Office (USPTO)
• About 2-3 months into the process, the examining attorney at the USPTO will issue what’s called an “office action”. The examining attorney’s job is to limit the amount of applications that are passed by the USPTO, because there are simply too many trademarks filed each year. 
• The purpose of an Office Action is to poke as many holes in the application as possible. It’s a two-strike system, meaning, you only get two Office Actions before your application gets thrown out. This is where a trademark attorney earns their keep; he or she will have arguments ready to overcome such Office Actions.
• After the Office Action phase, the USPTO will approve the application and publish it for opposition. If the examining attorney does not find grounds for refusing to register your trademark and your application satisfies all legal requirements, your trademark will be approved for publication in the USPTO’s Trademark Official Gazette (TMOG). 
• The TMOG, a weekly online publication, gives advance notice to the public that the USPTO plans to register your trademark. 
• Approximately one month after approval, your trademark will publish in the TMOG. Within 30 days of the publishing date, anyone who believes his or her business will be harmed if your trademark is registered may file an objection (or “opposition”), which sends the trademark through another process of review before the Trademark Trial and Appeal Board. Your attorney will be able to navigate these complex trials on behalf of your business.

USPTO Registers Your Trademark

• About three months after your trademark is published in the Trademark Official Gazette, if no opposition was filed, your trademark will be registered. If an opposition was filed but was unsuccessful, we will register your trademark after the Trademark Trial and Appeal Board dismisses the opposition.
• After your trademark registers, you must periodically file maintenance documents and fees within specific time frames to keep the registration active. For information on keeping your registration active, as well as the optional Section 15 filing to enhance the legal strength of your registration, see the video, “Post-Registration Issues.” 
• Between five to six years after registration go to file a Section 8 Declaration and every 10 years you will file a Section 8 declaration and  Section 9 Renewal. Your attorney will help you file for these motions.

After reading this, the process of trademarking your homestead business may seem overwhelming, but a trademark attorney will make the process as smooth as possible. Ultimately, determining whether a trademark is appropriate for your business is best decided after consulting with a trademark attorney. To book a consultation, reach out to us at www.paigehulse.com/contact.

IF YOU STILL WANT TO REGISTER YOUR TRADEMARK, BUT AREN’T ABLE TO PROVIDE A “SPECIMEN”, THERE IS AN ALTERNATE OPTION:

 FILING A 1B APPLICATION

A 1B application follows all of the same steps as a 1A application, with one distinction: you do not have to file a specimen. In other words, a 1B application is an application stating that you have a “bona fide” intent to use the mark in commerce.

Here is the USPTO’s description of the process of a 1B filing, and again, all of the information comes from the USPTO website:

Step 1. Application filed.

You file an application based on your bona fide intention to use your trademark in commerce. Your application is given a USPTO serial number. You can check the status of your application by entering the serial number in the TSDR database or calling the trademark status line at 571-272-5400, or toll-free at 1-800-786-9199 (select option 1, then option 2). In about three months go to step 2.

Step 2. USPTO reviews your application.

If your application meets the filing requirements, it’s assigned to an examining attorney, who reviews it to determine whether federal law permits registration of your trademark. Filing fees are generally not refunded, even if your application is later refused registration. In about one month go to step 3a or step 3b.

Step 3a. USPTO approves your trademark and publishes it for opposition.

If the examining attorney does not find grounds for refusing to register your trademark, and your application satisfies all legal requirements, your trademark will be approved for publication in the USPTO’s Trademark Official Gazette (TMOG). The TMOG, a weekly online publication, gives advance notice to the public that the USPTO plans to register your trademark. Approximately one month after approval, your trademark will be published in the TMOG.

Step 3b. USPTO issues and Office Action letter.

If the examining attorney finds any issues with your application, they will issue an Office Action letter. Your attorney should submit a timely response to this notice or USPTO will abandon your application (Steps 4a and 4b.)

Step 5. USPTO publishes your application if there are no other refusals (Steps 6a and 6b).

Within 30 days of the publishing date, anyone who believes his or her business will be harmed if your trademark is registered may file an objection (or “opposition”). An opposition is similar to a federal court proceeding, but is held before the Trademark Trial and Appeal Board (TTAB). An opposition can extend the length of the registration process. Your attorney will be notified if someone files an opposition against your trademark. No further action is taken to register your trademark until the 30-day opposition period expires and any oppositions are resolved. 

In about three months go to step 8…

Step 8. Notice of Allowance (NOA).

If TTAB accepts your appeal and your application meets all legal requirements, you will be issued a Notice of Allowance (NOA). This notice indicates that your application made it through the 30 day opposition period. At this point, you will be given a deadline to file an acceptable Statement of Use (SOU). 

Steps 9a and 9b. Filing Documents.

Step 9a. You may file for an extension if you do not yet have a “specimen” or use of the trademark on your goods and/or services.

Step 9b. If you are using your trademark in commerce, you will file the SOU with a signed statement, a specimen of how your trademark is used in commerce, and the filing fee.

Step 10. USPTO Review

The USPTO will review your SOU.

Step 11. USPTO registers your trademark.

The USPTO will register your trademark if no refusals or rejections arise, or you will receive an office action letter. If the issues therein are addressed in a timely manner, you should receive registration in about 2 months.

Step 12. Trademark Upkeep.

Just as in the 1A application process, you will file a Section 8 declaration within 6 years. Then, you will file a Section 8 Declaration and a Section 9 Renewal every 10 years.

Conclusion

It can get quite complicated if you go into the trademark process alone. However, trademarking your homestead business is so important to the continued success of your brand. That’s why I highly recommend consulting with a trademark attorney. A trademark attorney will make sure your homestead business is in good hands through the trademark application process. To book a consultation, reach out to us at www.paigehulse.com/contact

Mentioned in this article:

• Should You Board Your Friend’s Horses?
• 3 Tips On How To Name Your Horse Farm (Legally)
• How to (Legally) Make Money Homesteading
• USPTO Trademarks

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• The Complete Legal Guide to Homesteading
• The Best Business Structure for Your Farm
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