A trademark can protect a name that distinguishes your goods and services from the goods and services of others. Because a trademark is based on a name’s business use, you cannot trademark a name that you use only for personal purposes, such as your own name or the name of your house or your pet.
Types of names that may be protected by trademarks include:
- A business name
- A product name
- A domain name
- Your own name, if people identify it with the goods or services you provide
- The name of your band
- The name of a character that you use to market your business, such as “Ronald McDonald”
Choosing a Name That Can Be Trademarked
To be registered as a trademark, a name must be used in commerce and must meet two other criteria: It must not be too generic, and it must not create a “likelihood of confusion” with an existing trademark or pending trademark application.
Likelihood of Confusion
Like any trademark, a name cannot be registered with the U.S. Patent and Trademark Office (USPTO) if it is so similar to an existing trademark that people are likely to be confused about the source of the goods or services. A likelihood of confusion exists if:
- The names are similar; and
- The names are associated with related types of goods and services. If the goods or services are unrelated, it is unlikely that the similar names would confuse anyone.
To get trademark protection for your name, it must be distinctive enough to set your product or service apart from others.
- The easiest names to trademark are made-up, or “coined,” names such as “Xerox.”
- Arbitrary names that use an existing word to identify an unrelated product or service, such as “Apple” for computers, also receive strong trademark protection.
- A suggestive name, such as “Chicken of the Sea” tuna, can be trademarked.
- Personal names, or names such as “saltypretzels.com” or “New York Pizza,” are “descriptive” marks, and they can only be registered as trademarks if they have acquired a “secondary meaning.” This means that the name has become so well known that people automatically think of only one source when they hear that name. “Ralph Lauren” is an example of a name that has a secondary meaning. A business typically has to promote a descriptive name for several years before it can show that the name has a secondary meaning.
- Generic names like “Ice Cream” cannot be registered trademarks.
Registering Your Trademark
You can register a trademark for your name by filing an online application with the USPTO or using an online trademark service.
- To avoid having your registration rejected due to a likelihood of confusion, it is a good idea to search the Trademark Electronic Search System (TESS), the USPTO’s online database, for similar trademarks before you submit your application or use a trademark search service.
- You can choose to register your name as a standard character mark or a special form mark. A standard character mark protects your name regardless of what style, font or design you use it in. A special form mark protects your name only in the format, font, color or style that you specify in your application.
- The filing fee for registering a trademark is $275–$325; although, these fees can change, so check with the USPTO for the most current fee.
- You can expect the registration process to take at least several months
LegalZoom can help you register a trademark for your business name. The service includes a federal direct-hit search and a 14-day trial to speak to attorney for legal advice on your application.