If you want to create a product or service with a unique brand, name, or logo, you should consider protecting your intellectual property with a trademark. But what does trademark mean, and are you required to register a trademark?
In this article, we will explore trademark basics, the difference between trademark and registered trademark, and the benefits of trademark registration to help you decide what is best for your brand. Specifically, let’s answer these frequently asked questions:
If you have specific questions about your trademark situation, the team at Trademark Lawyer Law Firm, PLLC is here to help.
What does trademark mean really? According to the United States Patent and Trademark Office (USPTO), a trademark can be, “Any word, phrase, symbol, design, or a combination of these things that identifies your goods or services. It’s how customers recognize you in the marketplace and distinguish you from your competitors.” A registered trademark can serve a dual purpose, benefitting both companies and consumers.
From a business perspective, trademark laws protect your company’s designs, words, and logos by prohibiting other companies from using your mark or a similar mark that would confuse consumers in the marketplace. Trademarks also help customers easily find and recognize products made by companies they trust. Familiar trademarks convey a sense of consistent, dependable quality.
Once you have created a logo or other brand mark, you can use it on your products and begin to establish common law trademark rights by using the “TM” symbol. You cannot use the registered trademark symbol “R” until you officially register your trademark. Without full registration, your common law rights are limited in use and scope. For example, your enforcement rights may apply only in the limited geographic area where you are selling your product. To create stronger, more expansive trademark protection, you need a federally registered trademark.
Answering the question of, "What does trademark mean?" is different than answering what a registered trademark really is and how it benefits your business. To obtain a federally registered trademark you must complete the trademark registration process through the USPTO. If you only need local protection, each state offers state-wide trademark protection as well. The process involves a detailed application where you must provide:
It is important to perform a thorough trademark search before applying for a registered trademark because if someone else is already using your mark or a similar mark, your application will be denied.
Once you receive a registered trademark you may, and should, use the registered trademark symbol “R” after your mark. This symbol places all others on notice that your mark is registered and protected. Not only does the symbol prove that you have legally claimed your brand, if your mark is infringed in the future you have established constructive notice of your legal rights by indicating your trademark is registered.
Anyone can use the “TM” symbol after a name or logo, and while this indicates an intention to protect a brand, the symbol alone does not offer many legal rights to the exclusive use of that name or logo. It is a good idea to use the trademark symbol while your application is pending with the USPTO to support your argument that you should be granted exclusive use, but once your trademark is registered, you should begin using the registered symbol immediately.
Registering your trademark ensures that your mark is distinctive, it gives you the right to enforce your brand throughout the country, and you can stop competitors from imitating your products and stealing your loyal customers by using your protected trademark. If you don’t register your mark and someone else successfully applies to register your mark, or something similar, your products may infringe upon that competitor’s mark and you will lose the opportunity to use that mark in the future. You may also have to rebrand your products to avoid further legal consequences.
The short answer is no; you can use a word, phrase, design, logo along with the “TM” symbol as an indication that your brand is your trademark. This may prevent others from using the design, but if you need to enforce your right to exclusive use, it will be more difficult if your mark is not registered.
Registering your trademark is not legally required, but without official registration, your company is still at risk that another company could infringe on your brand or “steal” your mark and register it first causing you to lose significant protection to that mark.
In trademark litigation, one of the most important factors is who began using the disputed mark first, but it can be difficult to prove. If your mark is registered, your application is proof of when you began using the mark and you will have a stronger legal argument than an unregistered mark. Also, if two companies are trying to register a similar mark, the earlier filed application will receive priority over later filed applications from the USPTO. These are just a few of the many reasons why you should not wait to register your trademark.
Some vendors, like Amazon®, will require proof of a Registered Trademark to take full advantage of higher marketing tiers, greater access to consumers, and increased counterfeit enforcement.
Finally, a Trademark registration will allow the USPTO to police your Trademark and usually prevent other similar marks from reaching registration giving them notice that their application may be infringing on your Trademark.
Getting a trademark registered for your business can be confusing and bring a lot of questions. What does trademark mean? What benefit does it have for me? A registered trademark can be an important key to your product’s success. At Trademark Lawyer Law Firm, PLLC, we provide comprehensive trademark registration services for startup businesses, entrepreneurs, business owners, and big corporations throughout the country. Having successfully completed more than 5,500 USPTO trademark registrations we ensure our clients receive superior legal advice at reasonable rates.
Suspensions are when your application is on hold. There are various reasons a trademark application can be suspended. However “likelihood of confusion” with prior application(s) filed and submission of foreign application are the most common reasons the USPTO may suspend an application. During a trademark suspension period, your lawyer will provide guidance on the next steps and whether it might be best to file an argument or pursue a coexistence agreement.
A disclaimer usually refers to a statement which indicates that you are not claiming exclusive rights to use the word(s) or a design element in your trademark application. A disclaimer allows for registration without creating a false impression of the registrant’s rights.
A good example of this is disclaiming “café” if your services are for a café.
If a trademark is not eligible for the Principal Registry, there is sometimes an option to register on the Supplemental Registry.
In cases where the USPTO finds the trademark application is merely ornamental, merely descriptive, or primarily geographically descriptive, the USPTO may allow the application to be registered on the Supplemental Registry. However, over time, the mark may acquire distinctiveness and possibly become eligible for the Principal Registry.
Two dates must be specified in a trademark application:
Date of First Use Anywhere: The “anywhere” refers to use in the U.S. or elsewhere. This is the date the goods were first sold or transported, or the services were first rendered under the mark. The use must also have been bona fide and in the ordinary course of trade.
Date of First Use in Commerce: This is the date when the goods were first sold or transported, or the services were first rendered under the mark in interstate or international commerce. The use of the mark must have been bona fide and in the ordinary course of trade.
The renewal timeframe for a trademark is between the 9th and 10th year anniversary of the trademark registration, and then in ten-year intervals. It is important to be aware that the USPTO also requires a registrant to provide an affidavit at the 5th and 6th years of ownership stating that the trademark is still being used in commerce. Failure to comply with the renewal timeframes or the affidavit requirements will result in the cancellation of the trademark registration.