What is a Trademark?
A trademark is a word, logo, phrase, symbol, or design (also referred to as a “mark”) used to distinguish goods or services. The ultimate goal of trademarks is to protect consumers from brand confusion and be tricked into buying an unintended product. Whether or not you should apply for trademark registration depends on a variety of factors.
There are two types of trademarks; common law and registered.
Common Law Trademark – A business has common law rights to their company name and brand name for its products as soon as the name is in commercial use. A common law trademark is fine for many businesses but only provides protection in a limited geographic area. An unregistered trademark uses the TM symbol.
Registered Trademark – For greater protection, a trademark can be registered with the federal government. Once you begin selling a product or service with the mark, you can make a claim to the exclusive right to use a trademark through the United States Patent and Trademark Office (USPTO).
Under common law, it may be more difficult to assert your rights if you need to file suit to challenge another business using a similar mark. If a businesses outside of your geographic area were to start using the name, registering the trademark would be extremely difficult, if not impossible. For this reason, some business owners decide to register for a trademark early on.
Copyrights, patents, and trademarks are all terms related to intellectual property, but are often confused. Generally, copyrights protect written works while patents protect ideas, and trademarks protect brands.
Learn more about the differences between trademarks copyrights and patents.
Do I Need to Trademark My Business Name?
A common question is whether business names should be trademarked. While it is not required to register, there are some significant reasons to consider officially registering your trademark. To weigh whether it is worth the cost and time to apply for a registered trademark, consider the following questions:
- Is there a competing company, product, or service that uses a similar mark?
- Is that small business in your area (statewide/ nationally/locally)? If a similar trademark is in use in another state across the country, it is unlikely that you will have an issue with consumer confusion.
- How likely is it that consumers will confuse the competitor’s mark with your product or service?
- Will you want to protect someone from using a domain name? Registering a trademark can also be helpful in disputes with others using domain names related to the mark
While the prospect of a competitor stealing your name or logo may seem scary, it is not always necessary to or prudent to apply for trademark protection from the beginning. The legal fees for applying are not steep, but they may not be affordable for a lean startup. Instead, you might consider waiting until your business has grown enough to comfortably afford to register your trademark. There are risks in waiting, but there are legal options available to you down the road if you need to challenge an infringer.
How Do I Get a Trademark?
It’s always good to seek legal advice from a trademark lawyer before applying for a trademark, but the main steps include the following:
- Trademark Search – The first step occurs before actually applying. You must conduct a thorough search of the USPTO database for all registered trademarks and conduct additional internet research to ensure no other company currently uses your name or product name with an unregistered trademark. This search can be conducted using internet search engines, domain databases, and searching for all registered business names through your local government and state sites.
Learn how to do a trademark search.
- Trademark Application – As a part of the application process, you will have to provide a “specimen” or sample of your mark.
- Application Examination – After submitting your trademark application, you should respond to any correspondence from the USPTO promptly. An examiner may request corrections or additional documents. From the time your application is filed, there is a 30-day period for other parties to contest your trademark if they believe it infringes on an existing trademark. If a party does challenge your application, you will likely need to file an appeal.
How Much Does it Cost to Apply?
The filing fees for trademark applications typically cost between $225 and $325 per class per mark. These fees do not include any legal fees if you choose to hire an attorney to help you.
How Long Does Trademark Protection Last?
A trademark can last forever; however, there are some requirements to do so.
USPTO | Trademarks: https://www.uspto.gov/trademark