You’ve heard the horror stories: Small businesses being sued for trademark infringement and having to rebrand their businesses. That means redoing marketing materials, changing domain names and a myriad of other nightmarish tasks — all because the business owner failed to file for trademark protection. Don’t let this happen to you!
Think of your trademark like planting a tree in your garden. The trademark represents your brand and you need to protect it and maintain it, so it grows and blooms. Here’s what to do.
Understanding trademarks: What can they do?
First, it’s important to understand the distinction between the three types of protection available from the federal government.
- A copyright protects original works of authorship both published and unpublished, such as artistic works like poetry, novels, movies, songs, computer software and architecture. Copyrights do not protect facts, ideas, systems or methods of operation.
- Patents protect inventions or discoveries such as processes, machines, and designs for products.
- A trademark is a word, phrase, name or symbol that identifies a company, a product or a service and distinguishes it from competitors.
You can trademark your company name, product names, logos and taglines. You can’t trademark an invention or a piece of software.
Trademarking Your Brand: Steps to success
To see if your business name is available to trademark, start by searching online for similar names and brands to make sure your company name isn’t already taken. Does it seem as if every name you want pops up in Google? Don’t fret: The only search results you really need to care about are those on the United States Patent & Trademark Office (USPTO) website. If your name, logo, tagline, etc. doesn’t show up there, you can begin the trademark application process.
Most likely your brand involves more than just your company name, so you need to be clear on what exactly you want trademarked. The USPTO will want to know if your trademark consists of words only (called a “standard character drawing”) or if it includes stylization, designs, graphics, logos or color (called a “special form drawing”).
During the application process you’ll be asked to upload files depicting your trademark. If you’re trademarking a special character drawing, the more detailed and original you can make this drawing, the better chance you have of securing the trademark. If your business has already begun, you’ll also need to show evidence of the trademark appearing in your marketing materials, correspondence and website.
You’ll also need to determine your business’s classification. You’ll be directed to search on a few words describing your what your business does, how it does it and where it does it. The system then tries to match your description with several options for classification. Here’s where you can really distinguish your trademark from similar trademarks already in the system — again, the more specific you can be, the better. If you’re not sure of your classification, ask an expert on trademarks or contact the USPTO for assistance so you get it right.
Protecting your Trademark: Use It or Lose It
Once your trademark has been approved, your responsibilities have just begun. Your trademark needs your care and attention if you want to maximize its full power for your brand. Use your trademark extensively so as to keep it in the public eye. Why is this important? The U.S. trademark system is based on use. If another company files for the same trademark and can prove you have not used your trademark consistently and in a high-quality manner, you could lose your rights to it.
Between the fifth and sixth year after your trademark has been registered, you will be required to file a “Declaration of Use” to show you’re keeping your trademark in the public eye. Then, between the ninth and tenth year, you need to file a combined “Declaration of Use (or Excusable Nonuse)” and “Application for Renewal” in order to continue ownership of the trademark. You must refile for ownership every 10 years after that to maintain in good standing.
What happens if you miss the deadline for renewal? You do have a grace period of six months after the deadline to refile, but if you miss that deadline, you’ll need to start the trademark registration process all over again.
If you follow the rules for care and feeding of your trademark, you’ll have nothing to worry about. Maintain your trademark registration, keep your trademark in the public eye, and you can sleep soundly with no nightmares about trademark infringement to keep you awake.