Do you ever wonder what will prevent another company from using your business name? How about if you’re legally permitted to use the name you picked for your business? Or do you know when you can use the TM symbol with your brand or product name?
Assembled here are all the answers to the most frequently asked questions when it comes to trademarking. If you’re a small business owner, read on to learn more about the trademark, and most importantly, if you need one for your business.
What is a trademark?
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.
What can be trademarked?
Trademark registration can be granted on distinctive names, logos and slogans. You might want to seek a trademark for a product name, company name, company logo, or tagline.
For example, “Nike”, the Nike swoosh design, and “Just Do It” are all trademarks owned by Nike to distinguish their products from other athletic companies. But keep in mind that trademark protection only applies to a particular category of goods and services. Nike Inc. may own the mark on a variety of shoes, clothing, sporting goods, etc. But there’s also a Nike Corporation in Sweden that’s involved in heavy machinery, like hydraulic lifting jacks.
What’s the difference between a registered and unregistered trademark?
Trademarks don’t actually have to be registered with the USPTO (US Patent and Trademark Office). If your company creates a logo or name that you want to use exclusively, you can attach the TM symbol and this essentially gives you “common law” rights.
However, trademarks that are registered with the USPTO enjoy stronger brand protection (see “What are the benefits of registering a trademark?” below)
Also keep in mind that in order to claim first use to a name, the name has to be “trademarkable” (i.e. not already in use by someone else) and needs to be in use in commerce. For example, if you think of a cool company name, you will need to actively market and sell a product or service using that company name for your common law trademark to be valid.
How do I know if a name is available for me to use for my company, product, or service?
Before you incorporate or register your business with your state, you’ll need to check the state’s database of company names and make sure the name you want isn’t already in use. Name conflicts are one of the main reasons many LLC, corporation, or DBA applications get rejected. At this point, you should also conduct a free trademark search to check if your business name is available to use at the federal level.
It’s also important to know that you can still infringe on someone else’s mark even if they’ve never formally registered it with the USPTO. For this reason, you should also run a comprehensive nationwide trademark search into state and local databases (beyond just your own state). This should include common law and county registrars.
When should I or can I use the trademark symbol? And what’s the difference between TM and ®?
Before you have registered a trademark with the USPTO, you may use the TM symbol. After a trademark is registered with the USPTO, you have the right to use ® in your trademark. Many companies choose to use the TM or ® symbol with the first appearance of the company or product name in a document, and then drop the symbol for each appearance after that.
What are the benefits of registering a trademark?
By registering for U.S. Federal Trademark protection, you’ll be eligible for several benefits, including:
- Treble damages in some cases of infringement
- The right to use ® in your trademark
- A streamlined process for securing your domains and usernames at social sites like Facebook, Twitter, and YouTube
- Significantly stronger protection than ‘common law’ (aka. unregistered) marks. This can make it much easier to recover your property, let’s say if someone happens to use your company name as their Twitter handle.
If I’ve already registered my name with the state, do I still need a trademark?
When you incorporate, form an LLC, or file a DBA (Doing Business As) for your new business, this process registers your business name with your state’s secretary of state. Before approving your application, the state checks that your name is distinguishable from all other business names registered in the state. Once approved, the business name is yours, and yours alone, to use within the state. This prevents anyone else from using your name within your state, but it doesn’t offer any kind of protection in the other 49 states.
If you’ve started a business that’s physically tied to your state (i.e. a hair salon or restaurant) and have no plans on expanding into other states, registering your name with the state or county might be enough brand protection for you. However, if you’re planning on conducting business outside your own state (i.e. you sell a product or you provide services and some of your clients may live elsewhere), you should look into trademark protection with the USPTO.
How are trademarks registered and how much does it cost?
To register your business name, you’ll need to file an application with the USPTO: you can file either directly with the USPTO or have an online legal filing service handle it for you. Expect to pay approximately $325 per class in application fees that your mark would fall under and the process can take anywhere from 6-12 months once you submit your application.
It’s also smart to perform a comprehensive trademark search before starting the application process to make sure your name is available (you won’t get an application refund just because your name isn’t available).
While the process of registering a trademark is more involved than registering a DBA, rights to your name will be enforced by both the federal and state governments. As you’re getting your company off the ground, remember that your name represents your brand and business, so take the right steps up front to protect your identity.
Trademark Photo via Shutterstock