When launching a new company, you will want your brand to stand out from the crowd. Obtaining a trademark is an excellent strategy to shield your company against name or branding issues while also guaranteeing that your company stands out.
However, trademarking your brand is a legal procedure that might be difficult. In this post, we’ll discuss what a trademark is, how it differs from other intellectual property (IP) protections, if you should obtain a trademark for your company, and how to file for a trademark if you determine that trademarking your brand is a good idea.
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What exactly is a trademark?
A trademark is any term, slogan, symbol, design, or combination of these that identifies and differentiates the source of a business’s products and services from the goods and services of another party. The primary goal of a trademark is to avoid customer confusion by guaranteeing that two identical firms do not use the same name or symbol.
You may legally protect your company’s brand by trademarking it via the US Patent and Trade Office (USPTO). However, since it is a legal procedure, it is strongly advised, but not needed, to use a private attorney who specialises in trademark law or to go via a trademark registration corporation.
Differences The Difference Between a Trademark, a Patent, and a Copyright Trademarks,patents, and copyrights are all types of intellectual property, but they all apply in different ways.
Trademarks: Trademarks are used to distinguish one firm from another. They guarantee that customers are never confused about who they are doing business with, and that company owners are not subjected to unfair competition from other firms that use the same or similar names or trademarks as theirs. Trademarks do not have to be registered with the federal government, although they may be granted for ten years.
Patent: A patent is a federal government-granted privilege that allows an inventor to prevent others from creating, selling, or utilising their invention for a certain period of time. Patents are classified into three types: utility patents, design patents, and plant patents. They are typically good for a period of twenty years.
Copyright is a set of rights that automatically vest in the creator of an original work of authorship, such as a literary work, music, movie, or software. These rights include the ability to reproduce the work, create derivative works, distribute copies, and publicly perform and exhibit the work. Works do not have to be registered with the United States Copyright Office, although doing so might be advantageous. Copyrights are typically valid for the creator’s lifetime plus seventy years.
What Is the Difference Between a Company Name and a Trademark?
Your business name is just the name you choose for your company. The primary distinction between a business name and a trademark is that trademarks may cover more than simply your company’s name.
While you may register your business name with both your state and the USPTO, your state will not protect your company’s logo, tagline, or other distinguishing elements from others. This safeguard is derived straight from federal trademark laws.
Trademarks are classified into four types:
Trademarks: These are marks that are used by firms that sell items.
Service marks: These are used by firms that provide services.
Collective markings: These marks are used by members of a collective to show membership in the group or to identify and differentiate members’ goods and services from non-members’ products and services.
Certification marks: These marks are intended to indicate customers that certain products or services, or the producers of those goods or services, have satisfied specified requirements.
What Isn’t Trademarkable?
The federal government has restrictions on what it will recognise as a trademark or allow to be registered as one. This includes the following:
Generic trademarks: Generic terms or phrases that are regularly used in business cannot be trademarked. You cannot trademark the term “clothes” if you own a clothing business. Similarly, a fruit stand or smoothie store would most likely be denied the right to trademark the term “apple.” However, since that term is not generally used in the IT sector, Apple may hold a trademark to sell phones and computers under that name.
Existing trademarks include: A term or phrase that is already a registered trademark in the same class of goods or services cannot be trademarked. For example, two soap firms cannot both register the name Dove, but the USPTO allows both Dove soap and Dove chocolate to possess trademarks on the same phrase since consumer misunderstanding is improbable.
Unregistered trademarks include: Even if a trademark is not registered, the federal government normally recognises it. Your application may be refused if you seek to register a trademark that is already in use by another firm in your sector or state. The decision will be focused on whether having two firms with the same name would confuse customers.
Should I File for a Trademark?
Choosing whether to trademark your company, like any other decision you will have to make as a business owner, may be difficult. Trademarks offer substantial trademark protection and legal rights to defend your brand from infringement. However, trademarks are not required for all company owners.
Why You Should Register a Trademark
The benefits of trademarking your brand are many. Among these benefits are:
Consumer Protection Act Against Cybersquatting
This is only accessible via the USPTO and permits a company to sue domain name registrants who use identical or confusingly similar trademarks.
Across the United States, there is universal protection.
If you want to trademark your company, you will obtain nationwide protection for your brand; however, this is only if you register with the USPTO. If you register your trademark with the state, it will be protected exclusively in that state or geographical region.
You may request that counterfeit import items be automatically confiscated by US Customs and Border Protection.
Can result in worldwide protection
Having a trademark in the United States makes it considerably simpler to have your mark protected in other countries.
Protection under federal law
Infringement cases will be heard in federal court rather than state court.
The usage of the ® sign is permitted.
A USPTO-registered trademark allows you to use the ® sign with your logo, while it is not necessary to be utilised with every occurrence of your mark. This sign may be used only after the application procedure has been finished, not during it.
Reasons to Avoid Obtaining a Trademark
Although a trademark provides significant brand protection, it is also a time-consuming and costly procedure. Even without a trademark, a company owner may protect their brand.
Trademark registration may be time-consuming.
There are several lengthy stages involved in registering your trademark; it might take months to prepare your application and up to ten months to complete it.
Trademarks may be costly.
The application price is around $225 plus an extra $400 per type of products or services. You may also need to employ an attorney to assist you in correctly completing the application and protecting your brand after it has been trademarked.
Some business owners may choose not to trademark their company in favour of a simpler and less expensive option.
The trademark sign (TM)
Anyone may use the TM symbol with their mark, and it is often used when a company owner is unable to register their firm. Although it has little legal weight, it may dissuade others from attempting to use your mark.
The rule of law
Even if you never filed your trademark with a government body, the minute your logo is used for labelling, packaging, or your goods, it is trademarked under common law. If your company is the first to utilise a brand, common law rights protect your right to use it in your geographic region. This is protected both at the federal and state levels, albeit some states have somewhat differing restrictions.
However, unlike an established federal trademark, a common law trademark is difficult to defend outside of your specified geographic region. Because there is no formal public record of your trademark or when usage started, common law rights are often difficult to enforce. As a result, it is strongly advised that you properly register your trademark. Common law trademark rights are enforceable in court and before the Trademark Trial and Appeal Board, to whom you should turn if you have a problem. The USPTO is another useful resource.
Register with your local government.
Every state permits you to trademark your brand, and it is generally less expensive and quicker – as little as $30. You must still do some effort for the application procedure, but it provides better trademark protection. However, such protection does not extend beyond the state in where your trademark is registered. If you wish to register a trademark in your state, the USPTO website includes a link to the registration page for each state.
Steps for Obtaining a Trademark Application
Before submitting your application, do a clearance check on the USPTO database to ensure that your name and logo are not already registered. One of the main reasons an application is denied is a failure to do a thorough search. For common law reasons, it is also suggested to do a state search as well as a broad internet search.
Once you’ve identified a conflict-free mark, you may submit two kinds of trademark applications with the USPTO. The TEAS Plus application has a lower filing price and a more simplified procedure; nonetheless, you must submit a full first application. If you are unable to submit a full application right away, you may use TEAS Standard.
Applicants must answer comparable questions concerning the owner of the mark, entity type, country of citizenship, and more on the TEAS Plus and TEAS Standard. You must pick your sort of mark in the application: regular character, unique form, or, in rare situations, sound mark. For special form trademarks, you must provide a JPG and a description.
Filling out the Items and Services portion of the application correctly identifies the goods and services you are trademarking. Be as descriptive as possible since this option will be used to evaluate your application.
You must choose your filing “basis” (i.e., why you want a trademark). This is most likely a present commercial use of the mark or an intent to use it. You may need to submit a jpeg showing your products and services in use at this time.
Price and Length of Application
The application costs different amounts depending on whether you choose TEAS Plus or TEAS Standard. TEAS Plus is $225; TEAS Standard is $275. This quantity, however, might rise based on the number of classifications of products and services registered, as well as the number of marks.
Once registered, you must monitor the status of your application using the Trademark Status and Document Retrieval (TSDR) system, which should be examined at least every three to six months following the first filing. Otherwise, you risk missing a filing deadline. According to the USPTO, you should get a first answer within three months after applying, however the whole application process might take considerably longer.
Trademark Rights Under Common Law
If you are the first person to use the mark, your trademark is protected by common law trademark rights both before and throughout the registration process. Though this may be challenged in court, it is typically safer to register with the USPTO — particularly if you want to grow your company outside your state.
Strong trademarks vs. weak trademarks: Strong trademarks are those that can be legally registered and protected at the federal level. It is critical to remember the objective of a trademark: to assist customers in identifying and distinguishing the source of products and services. As a result, avoid names or logos that appear/sound/have similar meanings or commercial impressions to other items and services in the same sector (or are very well-known).
The most powerful trademarks are imaginative (created) or arbitrary (no association with the goods). Consider calling a tyre firm “bananas.” Suggestive markings, which indicate traits about the items, may also be powerful. Generic words or descriptive keywords, such as “Bicycle” for bicycles or “Creamy” for yoghurt, get the lowest ratings.
When is the ideal time to register: Though there is no “correct time” to trademark your firm, it is typically advised to trademark before incorporating. You may prevent the possibility of trademark infringement this way. You may wait a little longer if you haven’t started selling your product yet, but if you’ve already started selling it under that name and know you want to trademark it, there’s no purpose in waiting. After all, who has trademark priority determines who has trademark rights.
Additional assistance: While USPTO personnel may offer information about the application procedure, they cannot provide legal advice or paperwork and normally suggest that you engage a trademark attorney. If you wish to complete the application on your own, the USPTO website contains a wealth of information that will walk you through the steps.
What to Expect After You Register Your Company’s Trademark
Though you may exhale a sigh of relief when your trademark is authorised, your adventure does not stop there. Because the USPTO does not “regulate” trademark usage, you are responsible for safeguarding your trademark. This implies that you are responsible for ensuring that no one else obtains federal registration for a mark that is similar or identical to yours for connected products or services. If you discover a problem, it is your obligation to take legal action against the person who is trying to infringe on your trademark.
Keeping your trademark
Though trademark rights are perpetual, you must continue to use your trademark in commerce and submit the necessary maintenance paperwork at regular intervals to keep your federal trademark alive. Between the fifth and sixth years following registration, the first maintenance document must be submitted. The remaining paperwork must be submitted between the ninth and tenth years following registration, and afterwards every 10 years. Failure to submit these paperwork results in your federal registration being cancelled or lost.
Between the fifth and sixth years, you must submit a statement of usage, which costs $200 per type of goods or services. Then it costs $425 to file the statement of use and declaration every ninth-to-tenth year per class of goods or services.