Understanding the differences between trademark and copyright protection is essential for small business owners. Trademarks, also known as service marks, include any name, word, device, or symbol used to distinguish and identify the goods or services of a seller or provider. Filing for a trademark, copyright, or patent helps business owners protect their intellectual property. Those who own a trademark can bring lawsuits against individuals or businesses that use their trademark without permission for commercial gain. Selecting and registering trademarks are important steps to protecting your business.
What is a Trademark?
A trademark is a symbol, phrase, or word that represents a product or a company. Trademarks distinguish the products or services of one company from the product or services of another company. Examples of trademarks include the following:
- Brand names like McDonald’s, Apple, and Coach
- Acronyms like IBM, NBC, and CPK
- Slogans like “Just Do It” by Nike and “You’re in Good Hands” by Allstate Insurance Company
- Symbols, also called devices, like Nike’s swoosh symbol, Apple’s apple symbol with a bite taken out of it
- Stylized fonts, colors, and other designs that are distinguishable from other designs
- Names of products like the iPhone, and Big Mac
- Colors like Tiffany Blue and National Breast Cancer Foundation Pink
- A fictional character such as Ronald McDonald
- Combination or composite marks that include one or more features such as the Starbucks symbol that includes a name and logo
How Should I Select a Trademark?
The strongest trademarks often do not describe the good or service they represent. For example, the word Google, which is trademarked, is a made-up word that does not describe a search engine. Likewise, the Starbucks trademark which features a business name and logo does not describe coffee.
What is a Fanciful Trademark?
A fanciful trademark is one that has been created solely for the purpose of creating a trademark. Fanciful trademarked words have no meaning other than to serve as a mark. They are made up words like EXXON or EBAY that represent a business, good, or service. Fanciful marks are usually the easiest types of names to trademark because they are made-up.
What is an Arbitrary Trademark?
An arbitrary trademark is a word with a common meaning. The word or words do not describe the goods or services for which they provide a trademark. An example of an arbitrary trademark is Apple used to describe computers.
What Rights Does a Trademark Owner Have to Protect His or Her Trademark?
Trademark owners have a right to prevent another person or business from using their trademark. Trademark owners have a right to enforce their rights in civil court proceedings. Successful trademark owners can recover monetary damages for the economic harm suffered by trademark infringement.
Do I Have to Register My Trademark?
Businesses can protect their trademarked products without registering the trademark. Business owners can obtain a “common law’ trademark by using their mark, whether it is a logo, name, or a combination. In order to protect a trademark that is not registered, the user must prove that he or she used the name or logo in a business environment within his or her community. For example, if a business owner opens a pet bakery called “Fido’s Tasty Treats” and puts a logo using that name on boxes, the business owner will have the right to that name within his or her geographical area without formally registering the trademark.
How do I Register My Trademark?
It is not necessary to formally register a trademark in order to protect the trademarked name or logo. Individuals and businesses can register their trademarks online at the United States Patent and Trademark Office (USPTO). The USPTO has the legal authority to issue trademarks throughout the United States.
What are the Benefits of Registering My Trademark?
While the registration process can be time-consuming and costs money, the benefits of securing a federal trademark are numerous. First, the USPTO lists all registered trademarks within its searchable website. When other trademark applicants search for trademarks, your trademark will show up in the search. The most important benefit of registering your trademark comes with protecting your trademark. Federally registered trademarks provide a nationwide presumption of validity. On the contrary, unregistered trademarks only protect the trademark in a smaller geographic area.
When trademarks are federally registered, the presumption of validity shifts the burden of proof to the defendant. In other words, the defendant who allegedly used the trademark without permission has the burden to prove that he or she did not do so. The trademark owner benefits from the presumption that the defendant did infringe on his or her trademark. Trademark owners are entitled to monetary damages if they succeed in court against the defendant. The trademark owner needs to show the damages caused by trademark infringement.
The Trademark Registration Process
The first step to registering for a trademark is to decide on your preferred trademark. Changing a logo and branding is expensive, so be sure you are certain that you would like to use your trademark for the foreseeable future. Next, search for any similar competing trademarks. While you can search for existing trademarks online via the USPTO trademark database, it is wise to hire a skilled trademark attorney to conduct the search. Finally, submit the trademark application and filing fees. Typically, the fees are several hundred dollars.
Why Should I Hire a Trademark Filing Attorney?
The USPTO recommends that trademark applicants hire a trademark attorney to avoid potential pitfalls in the application process. Hiring a skilled trademark attorney can greatly increase the chances of the USPTO granting your trademark application. If the USPTO rejects your application, you will need an attorney who is licensed to practice law to argue your case before the USPTO.
At BizLaw, our trademark lawyers mean business. We have helped many businesses submit successful trademark applications throughout Saint Petersburg and the surrounding areas. Contact our law firm today to schedule your initial consultation and learn how we can help you.
