The Top 3 Reasons Influencers Need Trademarks

NOTE - This post is not legal advice and does not create an attorney-client relationship.  Call (435) 200-5291 if you would like to schedule a trademark consultation with an attorney at Kennedy Art Law, P.C.

Introduction

As an entertainment lawyer, I work with influencers, creators, artists, and businesses.  I love talking to my clients about trademarks.  Why? (Because I’m a nerdy workaholic and will probably die alone with my cats. Kidding. Kind of.) --- Because trademarks are vital but really misunderstood!

Trademarks may be ignored because they are expensive and complicated, and their benefits are not obvious when you are first launching your blog.  It’s hard enough to post daily, or even weekly!  Why bother with the expensive legal stuff until you’re making enough to work on your blog full-time? 

That mindset can hurt you and block your brand’s growth.  Trademarks protect your intellectual property (your name, logo, and/or tagline) and the brand/business you are trying to build with that property. In fact, I believe that trademarks are one of THE most important investments that you can make in your business after purchasing a domain name and building a website.  Read on for the top three reasons why you need a trademark.


#1 - Own Your Brand Name or Be Forced to Change It.

This random FASHIONISTA may want (and need) a burrito, but she also wants to keep her username.

This random FASHIONISTA may want (and need) a burrito, but she also wants to keep her username.

What happens when you hit 20,000 or 100,000 or 1,000,000 followers/subscribers, and discover that you have to change your name? (Panic, tears, and ice cream to soothe the pain of starting over on your brand identity...)

All successful influencers must build an identifiable brand.  This applies to bloggers and YT creators alike. And if you are going to take the time and effort to build a brand, then you probably want to own it...  Trademarks protect your blog name, tag line, logo, and/or product names. 

As I mentioned before, federal and international trademarks are basically granted on a first-come-first-served basis.  If you wait too long to file, your application could be rejected for a number of reasons:

  • Your trademark may directly infringe on someone else’s previously filed or existing trademark.
  • Your trademark may no longer be distinctive enough to warrant its own trademark protection. 
  • Your trademark may cause likelihood of confusion
  • Your trademark may have been diluted in the marketplace.

So don’t wait until it’s too late to file.  File your registration first and stake your claim in your name.


#2 - Think Bigger.  License Your Brand Name.

Many influencers – even highly successful ones – have not registered their trademarks.  To be honest, this is an understandable oversight.  Most of the influencers I work with stumbled into success through pursuing a hobby or passion that they shared with the world for free on digital media.  They didn’t set out to create a business; the business found them.  Bloggers often begin by getting free products, then receive requests for sponsorships/endorsements, and ultimately become affiliate-link mavens.  YT creators may generate AdSense revenue and sponsored content.  But it doesn’t have to stop there.

I dare you to think bigger.

But your brand needs to be prepared for whatever "bigger" means to you.  Many corporate brands and retail chains have noticed the influencer phenomenon, and they want to cash in.  One excellent example is Oh Joy! ®

Oh Joy! ® was launched in 2005 as a graphic design studio, and it is now a full-fledged brand with licensed product lines, how-to lifestyle videos, and a daily vlog.  The company applied for trademarks in 2007 and 2013, and both sets of trademarks were eventually granted by the USPTO.  In 2016, Oh Joy! ® launched a home goods line with Target

For the record, I have not worked with Joy Cho (founder of Oh Joy!) and do not have any insider information on the brand's deal with Target.  (I can't use my own clients as an example because of attorney-client privilege.)  However, this deal almost certainly required that Oh Joy! license its trademark to Target.  I believe the brand had better negotiating power when the merchandising opportunity arose with Target because the Oh Joy! brand had taken the time to prepare and lock down its intellectual property rights in advance. 

A giant retailer like Target would not want to partner with an influencer who could expose the company to an expensive lawsuit for trademark infringement by a third-party.  Be prepared for big opportunities and lucrative partnerships by having your name and logo registered and ready to rock!


#3 - Get Taken Seriously.

If people copy your blog/channel name or continue to use your endorsement when they haven't paid your invoice --  What are you going to do about it?

If you send a cease-and-desist message to infringers, one of the first things they will do is determine whether you have any “real” registered federal trademarks.  If they see that you don’t have a prior registration, then it may signal that – (1) you’re not taking your business seriously, (2) you don't have a full understanding of the law, and/or (3) you don’t have the resources for a fight.  That means the infringer will probably ignore your cease-and-desist letter and carry on.  

Even if you are fine with the unauthorized use ("free publicity!"), unchecked infringement can hurt your brand and future brand recognition (i.e., your influence).

The United States Patent and Trademark Office (USPTO) basically operates under a first-to-file system.  While you may have “common law” rights in your trademark, you need to register it with the USPTO to take advantage of the powerful federal trademark statutory benefits.  For example:

  • You effectively put other people on notice of your claim to your trademark (more info below).
  • You may be able to block a competing company’s registration for the same trademark (more info below).
  • You may be entitled to receive statutory fines and attorney fees from an infringer.
  • You may be entitled to injunctive relief (i.e., actual court intervention) against an infringer.

NOTE – Beware of online companies that claim to provide cheap trademark registrations.  Most companies – even LegalZoom – do not use licensed attorneys for "cheap" trademark packages.  People then hire lawyers like me to clean up the mess.  Save yourself some time and money, and call us instead -- (435) 200-5291 .


FINAL WORDS OF WISDOM

Trademarks protect your intellectual property. Your intellectual property is the core of your brand. You need to be taken seriously when standing up to infringers who threaten your brand because a strong brand has more influence.

POWERFUL INFLUENCERS MAKE MORE MONEY: ( 1 ) Companies pay for your influence through sponsorships and endorsements, and ( 2 ) Fans visit your blog/YT channel (ad revenue) and buy products (affiliate links) because they trust your influence.  If you want to have a long-lasting career as an influencer, then trademarks need to be at the top of your to-do list.

Kennedy Art Law, P.C. helps influencers and creators register U.S. federal trademarks.  Call Michelle Kennedy at (435) 200-5291 or visit www.KennedyArtLaw.com to learn more about why our law firm is the best choice for you. Let's build your empire.