March 25, 2017

What is a Trademark? Is Your Business Ready for one?


What is a trademark? Does your small business or startup need to register one?

What is a trademark? Is it just for large corporations or is it something that could benefit your small business? There’s no single right answer to the question if you need a trademark or not, but this article will discuss all the key aspects of trademarking to help you decide if it’s time to trademark your company or product name.

What is a Trademark? 

Let’s start with some basics. 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. You can trademark your business name, product/service name, logo, or slogan as long as it’s distinctive and not already used by someone else in a similar capacity.

A key goal of a trademark is to prevent confusion in the marketplace. For example, Nike Inc. — the shoe and sporting goods retailer we’re all familiar with  — owns a trademark on the name Nike. But, there’s also a Nike Corporation that sells hydraulic lifting jacks and machinery. This is permissible because the two companies are operating in entirely different industries and capacities. It’s very unlikely that anyone would ever confuse the two companies when shopping for running shoes.

How Does a Trademark Help?

As soon as you begin using a unique and distinctive name in commerce, you enjoy “common law rights of first use.” This means you get some level of brand protection even without formally registering a trademark. In addition, when you incorporate or form an LLC, this registers your business name in your state; no other business can incorporate or form an LLC in your state with your same name.

Why would you want to register a trademark? There are several key advantages of holding a federal trademark, including:

  • Registering your trademark puts your name in the official USPTO (U.S. Patent and Trademark Office) registry. This means that when another company is searching for potential names, they will find your name in the database and be less likely to choose your name/mark in the first place. This alone can save a lot of headaches with lawyers and ‘cease and desist’ letters. It’s much easier to prevent someone from using your name than get them to stop using it.
  • Once you register a trademark, it’s much simpler, faster, and cheaper to stop someone else from using the same or similar mark. Typically, a cease and desist letter from a lawyer can be enough to have someone stop using the conflicting mark; and having a registered mark is a much more powerful statement than trying to argue common law rights and first use.
  • When you have a registered trademark, you can take someone to federal court for infringement. If you didn’t register a trademark and discover that someone started using your name/mark, you don’t have a lot of options. You can try taking action at the state level, but this can get complicated, particularly if the competing business is located in another state. When you’ve registered with the USPTO, you now have federal protection and can sue an infringing company in federal court. This typically means a more straightforward and timely process.
  • You can use the R symbol instead of just the TM symbol. This might dissuade a competing company from trying to use your mark.
  • And finally, the trademark application process includes a very thorough review for any conflicting marks. This means that once your trademark application has been accepted, you can be assured that you’re not infringing the rights of another business. You don’t want to be on the receiving end of a cease and desist letter after unknowingly using someone else’s business name. Registering a trademark helps ensure your business name or mark will be legally yours to use for years to come.

How Do You Register a Trademark?

Registering a trademark is done through the U.S. Patent and Trademark Office. You can either file the application directly with them or have a lawyer or online legal filing service handle the application for you.

It takes a minimum of several months — sometimes close to a year — to register a trademark. While you may be at the mercy of the backlog at the USPTO, there are a few things you can do to make sure your application is processed as quickly as possible. First, the more distinctive your mark is, the easier it will be to trademark. A descriptive or generic name like “Pretty Flowers” will most likely be rejected.

In addition, performing a very thorough name search upfront is the most important thing you can do to speed along your trademark application and minimize the chance of rejection. Your application will be rejected (and you’ll lose your application fee) if the USPTO finds another business is already using a similar mark in commerce.

Searching the USPTO’s online database is a first step toward finding any similar and potentially conflicting marks. But, if you’re serious about your trademark application, you should also perform a thorough search that includes state trademark databases and business directories. That’s because a business can enjoy common law rights without formally registering. You can have a trademark lawyer or online legal filing service help you with this important search.

If you choose a strong name/mark and conduct a thorough search beforehand, you should be well on your way toward owning an official trademark. This will give you strong federal brand protection, and the peace of mind that you won’t be forced to stop using your business name, product name or other mark.

Trademark Photo via Shutterstock

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Nellie Akalp


Nellie Akalp Nellie Akalp is CEO of CorpNet, her second incorporation filing service based on her strong passion to assist small business owners and entrepreneurs in starting their business. Free guides, advice and videos on small business legal topics are available at her Small Biz Corner.

One Reaction

  1. Aira Bongco

    Having a trademark helps especially if you want to fully own your brand. This way, it cannot be used by other businesses.

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