Episode 421
5 Common Trademark Mistakes Business Owners Make
Most business owners don’t think about trademarks until it’s too late—but protecting your brand is a big deal! In today’s episode, we’re breaking down the biggest trademark mistakes entrepreneurs make (and how to avoid them). Our guest, Sarah Waldbuesser, is an experienced attorney and the founder of Destination Legal and Twist Law Firm.
She’s sharing the top five trademark mistakes that can cause major legal headaches—like assuming your LLC or domain name gives you automatic trademark rights (spoiler: it doesn’t!). If you want to keep your brand safe and avoid costly surprises, this episode is for you!
MORE ABOUT SARAH WALDBUESSER:
Sarah Waldbuesser, Esq. is a trademark attorney and the founder of TWIST Law and Destination Legal. After several years at a law firm and a few career pivots, she discovered a passion for helping entrepreneurs build and protect their brands. Today, Sarah works with business owners around the world to secure their most valuable asset — their brand — through smart legal strategies that make protection feel approachable and empowering.
A passionate adventurer, traveler, and food and wine enthusiast, Sarah loves connecting with like-minded entrepreneurs and chasing new experiences. When she’s not at her computer, you’ll find her exploring epic destinations, savoring wine with friends, or spending time with her two little ones.
TIMESTAMPS:
00:05 - Understanding Trademarks: Protecting Your Business
03:30 - Understanding Trademarks: Legal Foundations for Your Business
10:42 - Common Trademark Mistakes: Understanding LLCs and Domains
17:32 - The Importance of Trademarking Your Passion
20:58 - Common Trademark Mistakes Business Owners Make
Transcript
Welcome to the Systems Baby Podcast.
Speaker A:I'm your usual host, Jordan Gill.
Speaker A:And today we are diving into something that's super, super important, more important than most business owners realize, and that's trademarks.
Speaker A:Yes, those little registered Rs and TM symbols that could save you from a huge legal nightmare down the road.
Speaker A:And to help us navigate this legal maze, I've got the incredible Sarah Wall Bucer on the podcast today.
Speaker A:She is an attorney and founder of Destination Legal and the Twist Law Firm.
Speaker A:And she has been in for almost a decade, helping online business owners legally protect their brands.
Speaker A:So Sarah is going to be breaking down the five biggest trademark mistakes she sees business owners make all the time.
Speaker A:Like assuming your LLC or domain name protects you.
Speaker A:It doesn't.
Speaker A:And waiting way too long to register your business name.
Speaker A:So if you've got a signature program, podcast, or even a business name that you love, this is one episode you cannot afford to miss.
Speaker A:So grab a coffee, take some notes, and let's get into it.
Speaker B:Hey, system.
Speaker B:Save me, listeners.
Speaker B:I'm Sarah Walbuser.
Speaker B:I'm an attorney and founder of Destination Legal and Twist Law Firm.
Speaker B:I've been doing this for almost 10 years now.
Speaker B: tination Legal back in, gosh,: Speaker B:I was unhappy working my 9 to 5 in Washington, D.C.
Speaker B:and struggled every day trying to figure out a better way.
Speaker B:And I heard on a podcast that there were these things called online businesses, and I knew that that was me.
Speaker B:That's what I was meant to do.
Speaker B:So I founded Destination Legal because I saw a huge need.
Speaker B:Even though I didn't enjoy being a lawyer at a law firm, I fought it for a while, but I really had so many online business owners, coaches, and entrepreneurs coming to me asking for help.
Speaker B:The Legal was this kind of giant black hole of anxiety and concern.
Speaker B:People knew they needed contracts, they knew they needed trademarks, but they really were not sure where to start.
Speaker B:And that's where Destination Legal came in.
Speaker B:And then last year, I decided to separate out the two businesses.
Speaker B:And Destination Legal focuses on online contract templates for coaches and online business owners.
Speaker B:So that's where you'll find client contracts, terms of purchase for group programs, retreat contracts, website docs, all of that kind of jazz.
Speaker B:And over at Twist Law is where I provide full service done for you trademark protection packages.
Speaker B:And we will be diving in more into that today because we're going to be talking about five common trademark mistakes that business owners make.
Speaker B:And this is one of my favorite things to talk About.
Speaker B:I absolutely love talking about trademarks because they are so important for your business.
Speaker B:So we're going to rewind a little bit, I promise.
Speaker B:It is my goal to make legal less scary and more fun.
Speaker B:And if there's one thing people have told me over the past 10 years of doing that, is that I'm able to do just that.
Speaker B:I'm able to simplify some of these concepts and make them easier to understand.
Speaker B:And that's one reason I love doing what I do.
Speaker B:Because just like you, I want a business that provides freedom and flexibility and fun in my life.
Speaker B:And I love that I get to help other, you know, mostly women do that through legally protecting their businesses and their brands.
Speaker B:So let's dive in.
Speaker B:Before we get into the five common trademark mistakes that business owners make, let's talk about what is a trademark?
Speaker B:What is a trademark registration and why is it important?
Speaker B:So trademarks are designations of goods or services.
Speaker B:So they are names, logos, you know, slogans.
Speaker B:What they are not is content.
Speaker B:So if you've often been confused between what's copyright and what's trademark, copyright is a protection that goes for your content.
Speaker B:So online courses, ebooks, things like that that you're creating.
Speaker B:So think of C copyright content.
Speaker B:Whereas trademark protects what you are selling.
Speaker B:Trademarks are designations of goods or services and who makes them.
Speaker B:They are very important in our world.
Speaker B:We see them all the time.
Speaker B:If you're watching the video, I have my Stanley cup here.
Speaker B:This is a trademark, right?
Speaker B:You see this mug?
Speaker B:You know that this was made by Stanley.
Speaker B:It wasn't made by Yeti, which is another trademark.
Speaker B:If I'm walking down the street with a white cup with a green circle, you know that I was at Starbucks and that I was not at Dunkin Donuts.
Speaker B:Trademarks registrations exist so the consumers can tell the difference between who's selling what.
Speaker B:Because it would be very confusing to the marketplace if I walked out of Dunkin Donuts with a white cup with a green circle.
Speaker B:And so this really is something not only a business asset for businesses to have, but it's also important for consumers to know who they're buying from.
Speaker B:And so, you know, trademarks in the online space where we are typically are important for business owners to think about in terms of building their brand, protecting their programs, their services, their podcasts.
Speaker B:You know, I know that most of you are not probably selling spatulas or microphones or clothing, although you might be selling some journals.
Speaker B:But I'm guessing most of you have a business brand that you want to protect.
Speaker B:But then you might also have a podcast name that you want to own.
Speaker B:Or, you know, you might have a signature course that you want to make sure no one else in the industry is using that name so it's not confusing to them.
Speaker B:And that's what having a registered trademark does.
Speaker B:It allows you to own the name within your industry.
Speaker B:Now, that within your industry part is important because, you know, there are 45 different classes of goods or services within the trademark sphere, and you have to pick the one that you are in, and someone else with a similar name might trademark in another class.
Speaker B:So, for example, we have Dove Chocolate and we have Dove Soap.
Speaker B:These are not going to be confused within the marketplace.
Speaker B:If I say I had the best piece of Dove after lunch today, it was so good, you're likely going to understand that I'm talking about chocolate and not talking about eating soap.
Speaker B:Okay.
Speaker B:But, you know, if I was like, I have, there's Dove soap and there's Bluebird soap, it might be confusing because they're both bird names.
Speaker B:So it's.
Speaker B:That's the kind of thing the trademark office looks for when they're deciding if marks are confusingly similar or not.
Speaker B:Okay, so you have a trademark.
Speaker B:Let's say you have a business.
Speaker B:You're just starting out.
Speaker B:You name your business or your signature course, and you know you are declaring to the world that you own this name and nobody else uses that.
Speaker B:But how do you know that for sure?
Speaker B:And that brings us to common mistake number one, which is not searching before using a name to make sure somebody else doesn't already have the trademark.
Speaker B:And there's a couple of ways that you can do this.
Speaker B:One is when you think of a new name for a program or service or your business, go to Google, go search, just type in the name and your industry and see what pops up.
Speaker B:Okay, if something pops up, number one, with the R around it, that means someone owns it.
Speaker B:They've registered the trademark.
Speaker B:So another, you know, little side question I get all the time is the difference between the R and the tm A registration, which means you registered it with the government, you now own it.
Speaker B:You can keep others within your industry from using it.
Speaker B:That's when you get the R with the circle.
Speaker B:The little TM really has no actual legal power significance.
Speaker B:It's really just saying, hey, I'm declaring to the world that I am planning to trademark this.
Speaker B:I might be in the process, process of trademarking it, because the process itself can take, you know, up to a year or more.
Speaker B:So the TM is Kind of like, I intend to own this.
Speaker B:But if you've been through the process, if you have that registration certificate, you've earned the right to use the R with the circle.
Speaker B:And that is very powerful because when people see that, they know that you own that phrase, they know that you're taking your business seriously and that you are here to stay.
Speaker B:So it's a really, again, powerful business asset.
Speaker B:Okay, so search on Google, see what's there, go to social media, go to Instagram, go to Facebook, you know, just see, type it in, see if there's handles, see if other people are using it in the social media space.
Speaker B:Now, it doesn't necessarily matter if you find someone, that is, unless they have the R, and then, you know, it's good to confirm that.
Speaker B:So after you've kind of done the search, you might see some players in the field.
Speaker B:You might not go to uspto.gov they have a public search system there.
Speaker B:Just go to trademark, go to search, you'll see it, and type in the trademark.
Speaker B:Now, this is where it can get a little confusing.
Speaker B:This is where you might want to bring in a trademark attorney because the system is a little bit complicated.
Speaker B:You can search by class, you can search by live mark, by dead mark, by pending mark.
Speaker B:And so there's a lot of different kind of scenarios there, but for our purposes, just type it in and see what pops up.
Speaker B:If things pop up that are very similar to your name and they're within the same class, then that would be of concern.
Speaker B:So if you are registering a podcast, you see another podcast with that similar name, you're going to want to rethink this.
Speaker B:And at this point, you know, as a business owner, you have to think, how important is this name to my business?
Speaker B:Is it time to reach out to a trademark attorney who can help me kind of figure out, should I move forward with this or should I not?
Speaker B:If someone has a registered trademark that is very similar to yours, you do not want to move forward, because what you don't want is to end up with a cease and desist letter in your inbox, or worse, a lawsuit citing trademark infringement.
Speaker B:So if you know someone else is using a trademark and they actually own it and you pursue it, it's not a great idea.
Speaker B:So that's when you want to go back to the drawing board.
Speaker B:Okay, so that's mistake number one, is just not doing a thorough search.
Speaker B:Because what can happen, and I've seen this happen countless times, is you go about building your brand for a year or more and Then this other trademark owner gets wind of you and they send you a cease and desist letter.
Speaker B:And at that point, you have to rebrand after your customers and clients probably recognize your brand a bit after they, you know, are used to seeing you using these words and slogans.
Speaker B:And it's a big pain, right?
Speaker B:So it's money and rebranding.
Speaker B:It's time, it's energy.
Speaker B:So better, you know, to just go through this at the beginning.
Speaker B:Okay, so that's number one.
Speaker B:Another common trademark mistake that I see business owners making is thinking that if they have the LLC or they own the domain, that that is equal to having the trademark.
Speaker B:And it's definitely not.
Speaker B:So, you know, your LLC name has nothing to do with a trademark.
Speaker B:It could be totally different from your brand name, your business name.
Speaker B:For example, you know, I'm Sarah Wallabies or my LLC could be Sarah Walbuser, you know, international.
Speaker B:And then my brands are actually destination legal and twist law, which are trademarks.
Speaker B:Right.
Speaker B:And so your LLC is a business entity that you know, is filed with your state.
Speaker B:It is totally separate from anything related to a trademark.
Speaker B:It could be the same if you decide.
Speaker B:Right.
Speaker B:So, you know, for example, I do have the trademark for destination legal and destination legal does happen to be my llc, but it doesn't have to be that way.
Speaker B:Okay.
Speaker B:The other is thinking that if you have the domain that you have trademark rights.
Speaker B:Also not true.
Speaker B:Just because you have the.com or the.co or own the domain does not mean you have any ownership rights.
Speaker B:And just because somebody else has the.com and you want to go after the trademark, you can.
Speaker B:Just because they have it doesn't mean that they own it.
Speaker B:And actually this shows the power of having a trademark.
Speaker B:If you register a trademark within your industry and somebody else has the dot com and it's similar to your name or the exact same, once you have the registration, you have the power to get them to take their site down.
Speaker B:Right.
Speaker B:And so they cannot keep using that domain because it is confusing and similar to yours.
Speaker B:So you can have them take that down and potentially sell it to you.
Speaker B:They may or may not want to sell it to you, but what they can't do is continue to use it if it's going to be confusing.
Speaker B:Okay, so that's mistake number three, is thinking a domain or an LLC equal trademark rights.
Speaker B:It doesn't, you know, there.
Speaker B:I'm not going to get into some nuances around common law trademark rights.
Speaker B:Just know that, you know, if you are using a trademark for a really long time within your state.
Speaker B:Often you, you get trademark rights.
Speaker B:You know, this initially came about if I had a dry cleaners in, you know, Charlotte, North Carolina called Sarah's Dry Cleaners and you know, someone, I had it for 20 years and someone came next door and opened Sarah's also dry cleaners.
Speaker B:Like that would be an issue.
Speaker B:I could challenge that because of common law rights in the online space.
Speaker B:It is much less relevant.
Speaker B:The most important thing is getting to the trademark office, the federal trademark office, not even within your state because our businesses are everywhere, they're global, right?
Speaker B:So again, the trademark is the most powerful thing.
Speaker B:Okay, Mistake number three is waiting too long to trademark.
Speaker B:So this, you know, this is a big one.
Speaker B:One question I get all the time is Sarah, when is the right time to trademark?
Speaker B:And you know, typically the answer is always yesterday.
Speaker B:You know, not necessarily, but often people wait too long.
Speaker B:So you can register a trademark at any time.
Speaker B:Now it is true that you have to be selling something or have goods and services related to your trademark in order to register it, but you don't have to be selling anything yet.
Speaker B:So there are actually two types of application.
Speaker B:One is that you're using it in commerce right now.
Speaker B:The other is that you are intending to use it in commerce.
Speaker B:And so this, by filing that type of application, you're actually reserving the name for future use.
Speaker B:So for example, you know, Amazon has over 900 applications for trademarks, but they're only using, you know, probably not even 25% of those.
Speaker B:They're saving a lot of names for future use.
Speaker B:Another example of this would be Sarah Blakely with Sneaks.
Speaker B:So she actually registered, filed to register the trademark a full year and a half before Sneaks ever went on the market.
Speaker B:And the reason to do this, especially in a product based business, you don't want to spend, you know, thousands, tens of thousands of dollars on printing a bunch of product and making a bunch of product with your trademark on it or your logo on it if you're actually not going to be able to sell it.
Speaker B:Right.
Speaker B:So trademarking is really important in those ways.
Speaker B:And also kind of similar to what I said before, you don't want to spend a bunch of money in terms of branding and marketing and design on a brand that you don't own.
Speaker B:So building a business without owning the trademark is almost like building a house on land you don't own.
Speaker B:You spend all this money to build a house and then three years later along comes the landowner, is like, whoops, sorry.
Speaker B:And you know, tears your House down, that that's exactly how this could happen.
Speaker B:You spend thousands and thousands building a brand, and two to three years from now, someone comes and says, you don't own this brand and tears your house down.
Speaker B:And that is exactly how it can happen.
Speaker B:So you don't want to wait too long to register.
Speaker B:So, Sarah, when is the right time?
Speaker B:I like to use something called the gut punch test.
Speaker B:What is the gut punch test?
Speaker B:So the gut punch test, I want you to close your eyes.
Speaker B:Obviously not if you're driving or anything.
Speaker B:Think of your brand name, your business name, you know, your signature, course name.
Speaker B:You have it in your head.
Speaker B:Okay, what if you got an email in your inbox tomorrow with a cease and desist letter saying that you needed to rebrand in 10 days, somebody else owns the trademark.
Speaker B:Ugh.
Speaker B:Did you get a gut punch?
Speaker B:Did your stomach just ugh at that thought?
Speaker B:That's the gut punch test.
Speaker B:If you got the gut punch, it's time to register.
Speaker B:You don't want to risk losing your brand if you didn't.
Speaker B:If you're like, hey, I'm not that attached, I don't mind a rebrand, then it's not right.
Speaker B:Because registering a trademark is a time and money investment.
Speaker B:You want to do it right from the beginning.
Speaker B:Trust me on that one.
Speaker B:You know, I've had people just in the past week come from, you know, trying to do it themselves, trying to do legal zoom, and it didn't work out.
Speaker B:And now they're coming to me years later, you know, after a failed process when they could have done it right from the beginning.
Speaker B:So, you know, work with the trademark attorney, do it right from the beginning.
Speaker B:This is one of those things that you just want to invest in, similar to your clients who come to you for your expertise.
Speaker B:This is one of those cases where you want to go to someone who understands the nuances of the process.
Speaker B:So, you know, again, it can take up to a year to get.
Speaker B:But the good news is, once you file your application, that date of filing starts your legal protection.
Speaker B:So if I file something tomorrow, and you file something, you know, tomorrow, plus one day, the United States Patent and Trademark Office won't even look at your application until, you know, the first one is reviewed.
Speaker B:So that brings some peace of mind if you're concerned someone else is going to come and trademark right after you.
Speaker B:So the other thing around that is, you know, what if you have several trademarks, what's the most important?
Speaker B:So I'll give you a personal story here.
Speaker B: Destination Legal way back in: Speaker B:But I also had the slogan, protect your passion.
Speaker B:Right?
Speaker B:That is what my businesses are about, is making sure that business owners are protecting their passion.
Speaker B:Because most people in the online space, most coaches, most online business owners, you know, they start these businesses from a place of passion.
Speaker B:They want to help others.
Speaker B:They, you know, solve something for themselves, and now they want to help someone else solve it.
Speaker B:So it really is about protecting their passion.
Speaker B:That was more important to me than Destination Legal.
Speaker B:So I filed for that trademark right away.
Speaker B:That was the first one that I did.
Speaker B:And then I think maybe a year later I did Destination Legal and since then have done several others.
Speaker B:But, you know, you need to think about what's the most important.
Speaker B:Where do you see your brand going?
Speaker B:You know, trademarks last forever as long as your business is around and using it and you're, you know, filing the paperwork to keep up with it.
Speaker B:But, you know, you just want to think about, am I still going to be using this and how important is it to me?
Speaker B:So, you know, waiting too long to register and losing something that you really care about can be devastating and is a mistake that a lot of people make.
Speaker B:Okay, that's number three.
Speaker B:Number four, common mistake that business owners make when it comes to trademark is choosing a weak trademark and then not being able to register it.
Speaker B:So, you know, the best trademarks are those that are unique for the specific brands or services that are being sold and that are not too generic or descriptive.
Speaker B:So, for example, if I use this example all the time, if you are opening an apple pie shop and, or, you know, when you're selling apples, like, Apple Store is not a great trademark.
Speaker B:It's not going to fly.
Speaker B:It's too descriptive of what you're selling.
Speaker B:If you're selling computers and phones, Apple is a great, you know, trademark.
Speaker B:Back to Amazon.
Speaker B:You know, if you are selling tours of the Amazon, Amazon is not a great name.
Speaker B:It's descriptive of what you're doing.
Speaker B:If you are, you know, trying to take over the world, Amazon is a fine name.
Speaker B:Okay, there's some commentary for you.
Speaker B:So, you know, you really want something that is unique and descriptive.
Speaker B:You know, the online space is getting smaller by the day.
Speaker B:And so, you know, we see a lot of similar trademarks out there.
Speaker B:We're seeing a lot of collectives, a lot of accelerators, a lot of wealthy and a lot of women.
Speaker B:And so you just want to try to.
Speaker B:And those, those are all fine, right?
Speaker B:I've registered trademarks with all of those words in them.
Speaker B:It's not that those aren't fine, but you need to add on your own unique spin to them, whether that's using your name, whether that's using other things in your brand to just make it the most unique name as possible.
Speaker B:Okay, so again, this is something that a trademark attorney can really help you work through because we understand when is something too descriptive, when is it not unique enough?
Speaker B:If you come to me with something that I don't think is going to fly, I'm going to work with you until we can update it so that we know that we have a good chance of success.
Speaker B:Because a trademark registry is never guaranteed when you go through the process.
Speaker B:The trademark office is made up of individual examining attorneys and can often be subjective, which is why trademark law is both interesting and can be quite frustrating because you don't always see eye to eye with these, with these attorneys.
Speaker B:Okay, number five, this is the last common trademark mistake I see business owners make and that is not enforcing your trademark.
Speaker B:So if you do have the registration, if you've been through the process, it's your job to enforce your trademark.
Speaker B:Okay, so a lot of people don't know this.
Speaker B:It's not just set it and forget it.
Speaker B:A trademark registration is something that you need to a keep active.
Speaker B:As I mentioned before, there's renewal paperwork that needs to happen every few years.
Speaker B:But you also are in charge of policing your trademark.
Speaker B:So if you see somebody else using a name similar to yours within your industry, don't just let it slide.
Speaker B:It's your job to call them out on it.
Speaker B:And you can do this by, you know, there's a few ways you can do this.
Speaker B:One is I always say start with a friendly email or friendly reach out on social that hey, I own the registration, you know, to this, here's the registration number.
Speaker B:You need to stop using it, please.
Speaker B:If that doesn't work, you can send a cease and desist letter yourself.
Speaker B:If that doesn't work, you can have an attorney send one.
Speaker B:You can always reach out to the social media platforms or the websites.
Speaker B:You know, when you have that certificate, when you have that registration, it is very powerful.
Speaker B:So you know, enforcing your trademark so that it doesn't become weak is important because if too many people start using it, then it's too hard to enforce and it's almost, it weakens any power that you have.
Speaker B:Okay, so again, to recap these five mistakes that business owners make when it comes to trademarks is one, not searching before using a name, two, thinking a domain or LLC equals trademark rights.
Speaker B:It doesn't three waiting too long to register, four Choosing a weak trademark and five not enforcing your trademark at all.
Speaker B:So I hope that was helpful today.
Speaker B:I hope you enjoyed this episode.
Speaker B:If you want to find me on the Interwebs, there's a few ways you can do that.
Speaker B:Definitely check out TwistLaw Co if you're interested in potentially registering a trademark or wanting to learn more about the trademark process.
Speaker B:Or find me on YouTube @temarksbysarah as well as on Instagram @temarksbysarah.
Speaker B:And if you're wanting, you know, more of the contract side.
Speaker B:If you need some templates, head over to destinationlegal.
Speaker B:Com, that's where you can find that.
Speaker B:And if you are interested in potentially working with me and at Twist Law or learning more about the trademark process, I'm super excited to offer listeners of the podcast a free consultation call with me.
Speaker B:Typically I charge, but I am offering this to you guys.
Speaker B:So if that is of interest you can head to TwistLaw Co Systems to sign up for a free 20 minute consultation call again to learn about the process.
Speaker B:If you have questions about your brand and whether it's time to trademark, I am happy to help and look forward to chatting with you there.
Speaker B:I've loved getting to share this with you and can't wait to connect with you even further.
Speaker B:Have a great one.
Speaker A:So good right?
Speaker A:Thank you so much for listening to this episode of the System Save Me podcast.
Speaker A:If you loved this episode, I would so appreciate a review on whatever platform you're listening on.
Speaker A:But also go up on the guest host, connect with them on Instagram, LinkedIn or wherever they suggested to reach out.
Speaker A:I hope you're having a great day and I will see you on the next episode.
