What is a trademark? Is it just for large corporations or is it something that could benefit your small business? There’s no single right answer to the question if you need a trademark or not, but this article will discuss all the key aspects of trademarking to help you decide if it’s time to trademark your company or product name.
What is a Trademark?
Let’s start with some basics. A trademark is a word, phrase, symbol or design (or a combination of any of these) that identifies the source of a product or service and distinguishes it from competitors.
You can trademark your business name, product/service name, logo, or slogan as long as it’s distinctive and not already used by someone else in a similar capacity.
A key goal of a trademark is to prevent confusion in the marketplace. For example, Nike Inc. — the shoe and sporting goods retailer we’re all familiar with — owns a trademark on the name Nike. But, there’s also a Nike Corporation that sells hydraulic lifting jacks and machinery.
This is permissible because the two companies are operating in entirely different industries and capacities. It’s very unlikely that anyone would ever confuse the two companies when shopping for running shoes.
How Does a Trademark Help?
As soon as you begin using a unique and distinctive name in commerce, you enjoy “common law rights of first use.” This means you get some level of brand protection even without formally registering a trademark.
In addition, when you incorporate or form an LLC, this registers your business name in your state; no other business can incorporate or form an LLC in your state with your same name.
Why would you want to register a trademark? There are several key advantages of holding a federal trademark, including:
- Registering your trademark puts your name in the official USPTO (U.S. Patent and Trademark Office) registry. This means that when another company is searching for potential names, they will find your name in the database and be less likely to choose your name/mark in the first place. This alone can save a lot of headaches with lawyers and ‘cease and desist’ letters. It’s much easier to prevent someone from using your name than get them to stop using it.
- Once you register a trademark, it’s much simpler, faster, and cheaper to stop someone else from using the same or similar mark. Typically, a cease and desist letter from a lawyer can be enough to have someone stop using the conflicting mark; and having a registered mark is a much more powerful statement than trying to argue common law rights and first use.
- When you have a registered trademark, you can take someone to federal court for infringement. If you didn’t register a trademark and discover that someone started using your name/mark, you don’t have a lot of options. You can try taking action at the state level, but this can get complicated, particularly if the competing business is located in another state. When you’ve registered with the USPTO, you now have federal protection and can sue an infringing company in federal court. This typically means a more straightforward and timely process.
- You can use the R symbol instead of just the TM symbol. This might dissuade a competing company from trying to use your mark.
- And finally, the trademark application process includes a very thorough review for any conflicting marks. This means that once your trademark application has been accepted, you can be assured that you’re not infringing the rights of another business. You don’t want to be on the receiving end of a cease and desist letter after unknowingly using someone else’s business name. Registering a trademark helps ensure your business name or mark will be legally yours to use for years to come.
How Do You Register a Trademark?
Registering a trademark is done through the U.S. Patent and Trademark Office. You can either file the application directly with them or have a lawyer or online legal filing service handle the application for you.
It takes a minimum of several months — sometimes close to a year — to register a trademark. While you may be at the mercy of the backlog at the USPTO, there are a few things you can do to make sure your application is processed as quickly as possible. First, the more distinctive your mark is, the easier it will be to trademark. A descriptive or generic name like “Pretty Flowers” will most likely be rejected.
In addition, performing a very thorough name search upfront is the most important thing you can do to speed along your trademark application and minimize the chance of rejection. Your application will be rejected (and you’ll lose your application fee) if the USPTO finds another business is already using a similar mark in commerce.
Searching the USPTO’s online database is a first step toward finding any similar and potentially conflicting marks. But, if you’re serious about your trademark application, you should also perform a thorough search that includes state trademark databases and business directories.
That’s because a business can enjoy common law rights without formally registering. You can have a trademark lawyer or online legal filing service help you with this important search.
If you choose a strong name/mark and conduct a thorough search beforehand, you should be well on your way toward owning an official trademark. This will give you strong federal brand protection, and the peace of mind that you won’t be forced to stop using your business name, product name or other mark.
| Advantages of Registering a Trademark | Description |
|---|---|
| Official Registry | Registering your trademark with the USPTO places your name in their official registry, making it easier for other companies to identify your mark and avoid using it. |
| Simplified Protection | Registered trademarks have a stronger legal standing, making it simpler, faster, and more cost-effective to prevent others from using a similar mark. |
| Federal Court Action | With a registered trademark, you have the option to take legal action in federal court against infringing companies, streamlining the process for resolving disputes. |
| Use of ® Symbol | Registered trademarks can use the ® symbol, which carries more weight than the TM symbol and may deter others from attempting to use your mark. |
| Conflict Resolution | The trademark application process involves a thorough review for conflicting marks, ensuring you don't inadvertently infringe on another business's rights. |
| Long-Term Ownership | Registering a trademark secures legal ownership of your business name or mark, providing lasting protection for years to come. |
| Cease and Desist Prevention | By having a registered trademark, you can proactively prevent others from using your name, reducing the likelihood of legal disputes and cease and desist letters. |
Trademark Registration Process
- Determine Eligibility: Assess whether your business name, product name, logo, or slogan is distinctive and not already in use for similar purposes by another entity.
- Common Law Rights: Understand that you have common law rights of first use as soon as you start using a unique name in commerce, even without formal registration.
- Advantages of Federal Registration: Consider the benefits of federal registration, including official recognition in the USPTO registry, simplified prevention of name use by others, and the ability to take legal action in federal court for infringement.
- Use of R Symbol: When your trademark is registered, you can use the ® symbol, which may discourage others from using your mark.
- Thorough Name Search: Perform a comprehensive search to identify any conflicting marks, including searches in the USPTO database, state trademark databases, and business directories.
- Application Submission: File a trademark application with the U.S. Patent and Trademark Office (USPTO) directly or through a lawyer or online legal filing service.
- Processing Time: Be prepared for a registration process that may take several months to close to a year due to the USPTO’s backlog.
- Distinctiveness Matters: Choose a distinctive name or mark to enhance your chances of successful trademark registration. Descriptive or generic names are more likely to be rejected.
- Consult a Professional: Consider seeking assistance from a trademark lawyer or online legal filing service to conduct a thorough name search and navigate the application process.
- Peace of Mind: Once registered, you can use your business name, product name, or mark with confidence, knowing you have strong federal brand protection.
Trademark Maintenance and Renewal
- Continuous Protection: Trademark registration is not a one-time endeavor; it requires ongoing maintenance to safeguard your brand. Regularly monitor your trademark’s use in commerce to prevent unauthorized usage by others.
- Filing Declarations: The USPTO mandates periodic filings to declare your ongoing use of the registered trademark. Failure to submit these declarations can result in the cancellation of your trademark registration.
- Renewal: Trademark registrations must be renewed at specific intervals to maintain their legal force. Familiarize yourself with the renewal deadlines and requirements associated with your trademark.
- Evolving Brand: As your business grows and evolves, your trademark may need updates to reflect changes in branding or product offerings. Consider consulting a trademark attorney to ensure your trademark remains accurate and effective.
- Enforcement: Be prepared to enforce your trademark rights when necessary. If you encounter unauthorized usage of your mark, take prompt legal action to protect your brand’s integrity.
| Trademark Maintenance and Renewal | Description |
|---|---|
| Continuous Protection | Trademark registration requires ongoing monitoring to prevent unauthorized usage. Regularly oversee your trademark's use in commerce to safeguard your brand. |
| Filing Declarations | Periodic filings declaring ongoing trademark use are required by the USPTO. Failure to submit these declarations can lead to the cancellation of your trademark registration. |
| Renewal | Trademark registrations must be renewed at specific intervals to maintain their legal force. Familiarize yourself with renewal deadlines and requirements for your trademark. |
| Evolving Brand | As your business evolves, your trademark may require updates to reflect branding or product changes. Consider consulting a trademark attorney to ensure your mark remains accurate and effective. |
| Enforcement | Be prepared to enforce your trademark rights when necessary. If unauthorized usage of your mark occurs, take timely legal action to protect your brand's integrity. |
Handling Infringement Proactively
Encountering potential infringement of your trademark requires swift and decisive action. The first step often involves sending a cease and desist letter to the offending party, a formal request to stop the unauthorized use of your trademark.
If this does not resolve the issue, litigation may be necessary to protect your rights. Consulting with a trademark attorney can provide guidance on the best course of action and help navigate the complexities of trademark law.
Remember, failure to enforce your trademark rights could lead to a loss of exclusivity or even the cancellation of your trademark.
Expanding Your Trademark Portfolio
As your business grows, so too may your portfolio of products or services. Each new brand name, product line, or service you introduce could benefit from trademark protection.
Regularly reviewing your business’s offerings and assessing whether new trademarks are needed is an important part of maintaining a strong brand protection strategy. This not only helps protect your expanding business but also solidifies your brand’s presence in the marketplace.
International Trademark Considerations
If you’re planning to expand your business beyond the United States, it’s important to consider international trademark protection. Trademark rights are generally territorial, meaning a U.S. trademark provides protection only within the United States.
To protect your brand in other countries, you’ll need to file for trademark registration in each country where you plan to do business. The Madrid Protocol offers a streamlined process for registering trademarks in multiple countries through a single application.
Renewing Your Trademark
Trademark registration in the United States is valid for 10 years from the registration date, and it can be renewed indefinitely in 10-year increments as long as the mark is still in use. To maintain your trademark, you must file specific documents and fees with the USPTO at regular intervals.
This includes a “Declaration of Use” between the 5th and 6th year after registration, and a “Renewal Application” every 10 years. Staying on top of these deadlines ensures your trademark remains in force, providing ongoing protection for your brand.
Conclusion: Secure Your Brand’s Future
Trademark registration isn’t limited to large corporations; it’s a vital tool for small businesses looking to protect their brand identity and thrive in a competitive marketplace. While the decision to trademark your company or product name may not have a one-size-fits-all answer, understanding the key aspects of trademarking empowers you to make an informed choice.
A trademark serves as your brand’s guardian, distinguishing your offerings from competitors and preventing confusion in the marketplace. It offers valuable benefits, including official recognition in the USPTO registry, streamlined protection against name use by others, and the ability to take legal action in federal court if infringement occurs. The iconic ® symbol signifies your commitment to brand protection.
The trademark registration process, although requiring time and effort, offers peace of mind and lasting legal ownership of your business name or mark. Thorough name searches, distinctive naming choices, and professional assistance are your allies in this journey.
In conclusion, whether you’re a budding entrepreneur or an established small business owner, trademark registration is a strategic step towards securing your brand’s future and ensuring that your unique identity remains legally yours for years to come. Don’t just protect your brand; invest in its longevity with a registered trademark.
Trademark Photo via Shutterstock
This article, "What is a Trademark? Is Your Business Ready for one?" was first published on Small Business Trends
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