Legal stuff is complicated. Most people don’t know the ins and outs of the law, especially when it comes to business. From a business owner standpoint, your brand name holds a significant amount value. Really, it can be invaluable. But protecting your company name with a trademark isn’t an easy process. It’s also an expensive endeavor.
One loophole some aren’t aware of is what’s known as “common law” trademark rights, where no government registration is required.
Under the Lanham Act, the piece of federal legislation that governs trademark rights in the U.S., rights are accrued through their use in commerce. This means that if a trademark is used to identify a good, service, or company in commerce (i.e. there are sales being made under that mark), the mark holder owns “common law” trademark rights.
Helping to bring common law trademark rights to the masses, in a simple and affordable manner, is Bennett Collen and his Boston-based startup, Cognate.
Cognate is a common law trademark registry. The site allows individuals and companies to list the trademark rights they’ve earned through use. Users provide information similar to the information required by the U.S. Patent and Trademark Office for Federally Registered trademarks.
Collen, who grew up in Westchester County in New York, is a graduate of Boston College. Growing up the son of two IP attorneys, Collen spent plenty of time around law offices, legal trade shows and learning the intricacies of trademark law.
A few years ago, Collen and his father put one idea into motion; a place for individuals to list things they named. On the social site, people could stake a claim to the names they create in twenty different categories of possessions (like boats, pets, or cars), pastimes (blog, team, or band names), and businesses.
In early 2014, Collen realized the real opportunity was around business names and common law rights so he started Cognate and put his full focus on the business.
“This first 8 months or so was just getting a functioning site built and populating it with trademarks which are available through other public databases. With our ultimate goal to become the most comprehensive common law database where people can search for trademarks, we need to have as many trademarks listed as possible, whether they were submitted through Cognate or not.”
Collen initially raised a small friends and family round of funding to help get the beta site up, which launched this past March. Since then, Cognate has seen a lot of improvements, Collen told me. Since then, Collen has been working on partnering with major organizations within the industry.
Having added a full-time CTO, Collen is now in talks with investors to raise a $300,000 Seed Round.
“We’re making money now, but I want to be able to keep the momentum going and add to the team.”
In pitching potential investors, while the industry might not be the norm for many, the market and the data Collen has to back it up are intriguing. Because the Federal Registration process is lengthy, costly, and confusing, 98% of business and product names in the United States are never registered with the Patent and Trademark Office.
For entrepreneurs to not be protected, mainly because of an outdated process, is hard to grasp. And while registering with Cognate doesn’t provide full legal rights one would garner through the Federal Registration process, it is better than nothing. Because Cognate’s system allows companies to document their common law trademark rights by uploading specific information about how and where they use their mark it can give rights holders some paper trail of use and action.
Before Cognate, people could stake out a claim for their business name in a number of ways: they could register with the federal government, register with their state, or file a “Doing Business As” (d/b/a) certificate with their state or county. All of these options involve government fees, and often the assistance of lawyers.
Now, Cognate provides companies the opportunity to publicly document explicit proof of their common law trademark rights, helping them get found in trademark searches. Their goal is to help avoid trademark conflicts, which can lead to lawsuits and expensive rebranding.
When you register your business or product name on Cognate, you make a clear and public claim to your “common law” trademark rights, which may be superior even to another party’s federal registration.
Collen has big ambition for Cognate; “We’re aiming to become the nation's premier common-law trademark database,” the passionate entrepreneur told me.
The Cognate database is currently focused on Massachusetts businesses. Anyone looking to do business in the Commonwealth should jump on this newly launched startup site, run a free search and get your name listed.
Naming your business once is hard enough, protect that work and protect your brand by implementing your common law rights through Cognate.