What is a Trademark?
A trademark or service mark is a word, logo, phrase, symbol, or design used in the trade of goods or services to identify the source of these goods or services and distinguish that source from others.
Simply put, a trademark is how we distinguish one business from another. The main purpose of a trademark is to prevent consumer confusion by ensuring two similar businesses do not operate under the same name or symbol.
The U.S. Patent and Trademark Office (USPTO) regulates trademarks. Since a trademark becomes valid as soon as it’s in commercial use, registering a trademark with the USPTO is not required. However, doing so does provide an extra level of federal protection.
Trademarks are registered by class. There are currently 45 classes, 34 for goods and 11 for services. When you apply for a trademark with the USPTO, you will need to select which class or classes your product or service falls under. Once you obtain a registered trademark, it will be valid for ten years, at which point it will need to be renewed.
How is a Business Name Different Than a Trademark?
Your business name is simply the name you select for your business. If you operate as a sole proprietorship or partnership, you may choose to register a “doing business as” (DBA) name to operate in a name other than your own. If you form a registered business entity, such as an LLC or corporation, you will register your business name with your state or states of formation.
Generally speaking, a state will not allow more than one business to register under the same name. This means that your business name is typically protected at the state level as soon as you file your formation documents. Common law trademark protections will also apply to your business name when you begin operating with it. In these ways, a business name is very similar to a trademark.
The major difference between a business name and a trademark is that trademarks can apply to more than just the name of your company. While you can register your business name with both your state authorities and the USPTO, your state will not protect your business’s logo, slogan, or other identifying features from being used by others. This protection flows directly from federal trademark laws.
Differences Between a Trademark, a Patent, and a Copyright
Trademarks, patents, and copyrights are all forms of intellectual property, but they apply in a wide variety of different ways.
- Trademark: Trademarks are designed to differentiate one business from another. They ensure that consumers are never confused about who they are doing business with and that business owners do not face unfair competition from similar companies using the same or similar names or logos to theirs. Trademarks need not be registered with the federal government but may be approved for 10 year periods.
- Patent: A patent is a right granted to an inventor by the federal government that permits the inventor to exclude others from making, selling or using their invention for a period of time. Patents come in three categories: utility patents, design patents, and plant patents. They are generally valid for twenty years.
- Copyright: A copyright is a collection of rights that automatically vest to someone who creates an original work of authorship such as a literary work, song, movie, or software. These rights include the right to reproduce the work, to prepare derivative works, to distribute copies, and to perform and display the work publicly. Works do not need to be registered with the U.S. Copyright Office, but doing so can be beneficial. Copyrights are generally valid for the life of the creator plus seventy years.
What Can and Can’t be Trademarked?
Trademarks are important for branding, marketing, and building your business. You can trademark a word, phrase, symbol, logo, or even a color. There are three types of trademarks:
- Trademarks and service marks. These marks are used to identify the goods or service of one business from others.
- Collective marks. These are trademarks used by the members of a collective to indicate membership in the group or to identify and distinguish the products and services of members from those of the non-members.
- Certification marks. This type of trademark is used to show consumers that particular goods or services, or their providers, have met certain standards.
Not everything can be trademarked, however. There are limitations on what the federal government will uphold as a trademark or allow to be registered as one. This includes:
- Generic trademarks. Generic words or phrases that are commonly used in the course of business cannot be trademarked. If you run a clothing store, you cannot trademark the word “clothes.” Similarly, a fruit stand or smoothie shop would likely not be permitted to trademark the word “apple.” However, since that word is not commonly used in the course of doing business in the tech industry, Apple can hold a trademark to sell phones and computers under that name.
- Existing trademark. You cannot trademark a word or phrase that is already a registered trademark within the same class of products or services. For example, two soap companies cannot both register the name Dove, but the USPTO does allow both Dove soap and Dove chocolate to hold trademarks on the same word since this is unlikely to create customer confusion.
- Some unregistered trademarks. The federal government generally recognizes trademarks even if they have not been registered. If you attempt to register a trademark that is already in use by another business in your industry or state, your application may be rejected. The determination will be based on whether or not having two businesses with the same name will cause consumer confusion.
How Much Does it Cost to Trademark My Business Name?
The fee to register a trademark with the USPTO is typically between $225 and $400 per class of goods or services.
On top of the filing fees, you may need to hire an attorney, which can add to the cost. There are also renewal fees every ten years. The fee is $300 for electronic renewal and $400 for paper renewal.
When is the Right Time to Trademark My Business?
A business automatically receives trademark rights when they use their trademark(s) in the course of doing business. However, you can apply to register your trademark with the USPTO on an “intent to use” basis. Applying early will lower the risk of another business registering a similar trademark while you get your own business off the ground. Many businesses choose to register their trademarks as soon as they file formation documents with their state.
If you know you’d like to register one or more trademarks, it’s best to get started as soon as possible. You may choose to consult a trademark attorney to discuss the best timing and filing options for your business.
3 Simple Steps to Trademark Your Business Name
When you’ve chosen a business name and other identifying images or phrases that you’d like to trademark, you can follow these three steps to get started.
Search for Trademarks
The first step to registering a trademark is to search the USPTO’s database of registered trademarks. Next, check your state government’s record of registered business names. Finally, run your desired trademarks through a search engine to identify any unregistered trademarks that may match yours.
Submit Your Trademark Application
When you’re sure the items you’re looking to trademark at not in use by any other businesses, it’s time to prepare your application. You may wish to consult an attorney to make sure there are no mistakes with your application and to stay on top of deadlines and important dates.
Respond to Contested Feedback
Once you submit your application, the USPTO may contact you to request corrections to your application, additional documents, or ask you to answer additional questions. It is important to respond to any feedback from the USPTO office in a timely manner. Other parties will be given thirty days to contest your trademark, making a case that it infringes upon their trademark rights. If an opposition is filed, it will need to be resolved with the USPTO’s Trademark Trial and Appeal Board.
Best Practices to Get Your Trademark Approved
The most important step in preparing a trademark application is doing proper research. While never completely foolproof, spending time researching to ensure your trademarks are available will help you prevent infringement claims, denied applications, and other costly delays.
It is also wise to consult an attorney to help guide you through the complicated process of registering your trademark. An attorney will assist with your research, keep you on schedule with deadlines, help you respond to any requests from the USPTO promptly, and will provide a written opinion to support your application.
Alternatives to Registering Your Trademark
Some businesses choose to rely on common law trademark protections rather than registering with the USPTO. While this does provide some level of protection against trademark infringement, it is not as secure as holding a registered trademark.
By not registering your trademark, you risk rebranding, costly disputes, and a weak foundation for your brand. These can be more costly than registering your trademark, so this decision should not be taken lightly.
*While this article contains general legal information, it is not designed to be used as legal advice. For all legal advice regarding trademarks or any other issues, always consult an attorney.*