Ask HN: Should I trademark prior to Y Combinator?

Yes, that stuck out to me as well. That was a poor way of conveying the point. The 34% of YC that do not have a .com will probably just buy it once they have the cash, regardless of whether or not they change the name.

I could talk about this forever, but I'll restrain myself.

libertymcateer makes some great points. But I wanted to add two things:

1) For most people, when I think about registering a trademark, their concern is getting priority so that other people cannot jump in and use the same mark. Registering a trademark brings a host of benefits, but you don't need to register to get priority over later users. You just need to use the mark "in interstate commerce."

The problem for a company at your stage is this - chances are you are nowhere near the point that you could be said to be using the mark in interstate commerce. I'm assuming you aren't selling anything under the mark yet, right?

So, if you are really concerned about getting priority now, registration would have a benefit - you could file what libertymcateer referred to as an "intent to use" application. Your "priority date" would then be the date of your application, NOT the date the mark registers.

Eventually you will need to show that you are using the mark in commerce, but you can get up to 3 years to do that.

So, if really want to protect your mark now and are afraid someone might take it before you are already using it, then applying for a trademark registration can be worthwhile.

2) The other thing I tell companies in your position that are thinking about registering a trademark is to think about the time, effort, and resources they will be putting into building a brand around their desired trademark.

At the outset, it's easy to change branding. But let's say you start building some recognition around a name over the course of a year or two, start getting traction, etc..., and then you find out someone is already using the mark you chose as your brand or something confusingly similar. At that point, you will have sunk a bunch of money into a brand that needs to be changed and will have to start sinking that money in again.

Why might you think of registering at the outset, then? Well, as libertymcateer mentioned, you could do a search on TESS at the USPTO website. But it's a clunky search system and it's not even complete for your purpose.

If you are looking for prior users of a mark that could interfere with your right to start using a certain trademark, you need to look beyond marks that have been registered or for which people have applied to register. If someone is using a mark in commerce, but never applied to register, they can block your use. And none of those marks will appear on TESS.

In addition, it's not just identical marks. It's confusingly similar marks that can block your use. TESS can do some fuzzy searching, but you need to do those kinds of searches on a much broader basis.

If you file a trademark application, a trademark examiner will do searches and present objections if there are barriers to your getting trademark protection for a mark. No, it's not foolproof - they can approve a mark and a 3rd party can object. But it will be harder for a 3rd party to object if you actually are able to register the mark. That puts aside the credibility you get in having a registered trademark for a brand - random folks who want to write a cease and desist letter will more likely be deterred if you've registered the mark.

Now, applying to register the mark isn't the only way to get a better assessment of whether your chosen brand name would be a good choice from a trademark protection standpoint. There are trademark search services that can do a good job seeking out competing marks. But you really do need a lawyer to analyze the search results. That process will cost more than filing a trademark application. (The lowest risk thing to do would be to have a trademark search done, analyzed by a trademark attorney, and then filing an application to register, but the costs add up and I'm assuming cost is an issue here.)

So, essentially, filing a trademark application is relatively low-cost way to get an assessment of the legal viability of a name for trademark purposes, before you put your resources into building a brand around that name.

Just some things to think about.

Well I did recently apply to YC and prior to applying and read through the "How to successfully apply" and watch several video on their YouTube page. They advised against creating legal entity prior to YC because a mistake could be made and they even ask about this on the application. I have not created a legal entity as yet. However, this prompted me to investigate on the trademark matter. I just want to make sure i'm focusing on the important items first with the resources I have available and not jumping the gun.

Good intel. Thanks for sharing. I'm already selling my product under the name. I did do a search and nothing turned up so I don't believe anyone has trademarked anything as yet.