What is trademark?
A trademark is a word, symbol, phrase, design, or combination of those things, that tells where the goods or service come from. There are also service marks (used for service businesses), but in this article I’m going to use the term trademark to refer to service marks, too. Things like logos, slogans, and brand names, product lines, even sounds can be trademarked. The lion’s roar for MGM is an example of a trademarked sound.
What can be trademarked?
To be trademarked, a mark has to be used in interstate commerce. This means the mark is put on goods, packaging, displays, and webpages for example. This means you can’t usually register a mark you simply want to reserve for future use. However, you can file an “Intent-to-Use” application that allows you to sort of preapproves your use of the mark. There are several things the trademark office looks at when they get an application for trademark. Basically, if you want to trademark something it needs to be different enough from the current marks.
One of the biggest reasons for rejection is the “likelihood of confusion” with an existing mark. If marks are too similar and the goods and services could confuse customers, then the application will be rejected. Marks that sound like, look like, and/or have the same commercial meaning as a registered mark will be denied.
They will also look at whether the two businesses operate in the same, or related, category. So, if you want to register your logo for an accessories company that’s similar to an existing mark for a clothing company, your application will probably get denied.
When choosing your mark, it’s best to choose a distinctive mark. This will be easier to keep others from using it. Marks that are merely descriptive will likely be rejected. Think about the company “Apple”. If they were trying to trademark the name for actual apples, that wouldn’t be allowed because it would just be describing what the product is. But, by using “Apple” as a brand name for a technology company, that makes it very distinctive.
To find out more about trademarks, visit the USPTO (US Patent and Trademark Office) website at https://www.uspto.gov/trademark. They have a lot of resources and educational information available.
What’s the difference between TM, SM and R?
TM stands for Trademark and SM stands for Service Mark. This is for marks that have either not been registered or have applied, but not yet been approved. The R is reserved for registered trademarks only.
What is common law trademark?
Once you start using a mark in commerce, you have a common law trademark on it. This means that in your area of business and geographical location, no one else can use that mark for their business.
Why would you trademark your brand?
Even though you may have common law protection, there are other reasons to register your trademark. Number one, it gives you a legal presumption of ownership which can save you time and money if you need to bring an infringement action and it protects your use of the mark nationwide. It also allows you to sue in federal court for infringement.
How do you register a trademark?
You can have a trademark just by using something in commerce. This is called “common law trademark”. This means you have automatic protection for your trademark (meaning you don’t have to register), but it’s generally limited to your geographical area. Which may be fine if you’re only operating locally, but if you want to take your business to a national level, you would need to register your trademark for protection.
Registering your trademark
Trademarks are registered with the USPTO. Applying for a trademark is a highly detailed process and it’s one area of the law where I highly suggest hiring a trademark attorney to help. Filing fees are non-refundable and it can be a long process, so I think it’s better to have someone experienced in the field to help you along the way.