Unlike copyrights and patents, trademarks affect all businesses. When you use the name of your business publicly, you are using it as a trademark. When you sell products using a brand name, you are using that brand name as a trademark. The brand name of any service you provide is a service mark or, essentially, a trademark for services. A trademark or servicemark may consist of letters, words, graphics, or any combination of these elements.
The U.S. Patent and Trademark Office (USPTO) Summary of Trademarks and Servicemarks
A trademark is a word, name, symbol, or device that is used in trade with goods to indicate the source of the goods and to distinguish them from the goods of others. A servicemark is the same as a trademark except that it identifies and distinguishes the source of a service rather than a product. The terms “trademark” and “mark” are commonly used to refer to both trademarks and servicemarks.
Trademark rights may be used to prevent others from using a confusingly similar mark, but not to prevent others from making the same goods or from selling the same goods or services under a clearly different mark. Trademarks which are used in interstate or foreign commerce may be registered with the USPTO. The registration procedure for trademarks and general information concerning trademarks is described on a separate page entitled “Basic Facts about Trademarks.”
Common Trademark Problems for Small Businesses
You automatically have some protection for your trademark if you were the first person to use that trademark in commerce, even if you did not register your trademark. However, many small businesses get into trouble by doing inadequate trademark search. They often, although inadvertently, use a name already in use by another firm.
You should hire an attorney to do a trademark search for you, especially if you intend to do business on a national level. There are also commercial firms that provide trademark search services and/or offer access to their electronic trademark databases.
Trademarks do not necessarily offer protection across the nation, let alone internationally. Typically, they cover the geographic regions in which the trademark is being used. They also generally don’t cover multiple classes of goods, but only the class of goods the trademark is being used in.
For example, if you operate a local retail business called Big Red Balloons in the state of New York, it would not necessarily be in conflict with a retail store operating in California under the same name. Similarly, if a Big Red Balloons Flying School were to open in New York, it would not be in conflict with the Big Red Balloons store because the type of product being offered is noncompetitive.
If you are going to use your trademark nationally in the U.S., you should register it with the U.S. Patent and Trademark Office. You will also have to renew your mark between the ninth and tenth year after your initial registration, and between every ninth and tenth year to keep it valid.
You can also seek protection for your trademark in individual states, but it is much weaker than federal registration. You will have to seek separate protection from every foreign country you want trademark protection in.
If you obtain federal registration in the United States, you should use the registered trademark symbol at the end of the mark. But you may not use this symbol until and unless the federal registration has been issued.
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You cannot use someone else’s trademark. Additionally, you need to make sure your trademark doesn’t bear any confusingly similar resemblance to another firm’s trademark.
For trademarks to offer protection, the copy cannot be merely descriptive of your function or product. For example, “Bicycle Store” would not offer trademark protection, but “The Merry Cycle Place” probably would. The validity of a trademark is subject to many variables. One examiner at the federal trademark office may have one opinion regarding the validity of a trademark application, and another examiner an entirely different opinion. So if your trademark registration or creation is important to you, consider hiring a specialized attorney because it can be a tricky area.
Takeaways You Can Use
- You should develop a distinctive, defensible trademark for your business.
- Conduct a thorough search to ascertain whether your trademark will infringe upon an existing design.
- Trademarks used nationally should be registered with the federal government.
