What is a trademark?

As a small business owner, one of the most important aspects of your success is a solid brand reputation. Your customers recognize your business name, the colors, and the font. They know your business based on the name alone.

What would happen if another business started using the same name and producing lower-quality products? 

Your customers would be confused and disappointed. You might even lose business. 

Protecting your business identity and intellectual property is the first step towards keeping your business safe. One way you can do that is by filing for a trademark.

What is a trademark?

A trademark is a recognizable design, symbol, word, or phrase that identifies your products and distinguishes them from the goods or services of other companies. A trademark identifies a product as belonging to a specific company and denotes that company's ownership of the brand. 

A trademark is a type of intellectual property. Intellectual property is protected by local and federal laws. A trademark for a service is known as a service mark. 

For example, the word “Coca-Cola” is a trademark, as are “Coca-Cola” written in stylized script and the original curvy Coca-Cola bottle design. No other business can use the terms or marks used by Coca-Cola. This is especially true for a business within the same industry. No other beverage company can use a symbol that looks like Coca-Cola’s brand or a name that sounds similar.

Trademarks are registered through the United States Patent and Trademark Office or USPTO. Registered trademarks are denoted by the ® symbol. All other trademarks use the ™ symbol. Trademark registration with the USPTO is not required to receive protection under trademark law. 

What you need to know about trademarks: 

• A trademark is an easily recognized design, symbol, word, or phrase.
• A trademark creates legal differentiation between the goods or services of one brand from another.
• A trademark never expires. But, you must regularly use the mark to continue to receive protection.
• You can register your mark, but it is not legally required.
• Some trademarks are denoted by the ® and ™ trademark symbols. This isn’t required for legal protection.
• Trademarks can be bought, sold, and licensed to other companies.

What can be trademarked?

You can trademark many of the things that you use to distinguish your business from other businesses. You might have a trademark for:

• Your business name
• A product name
• Your logo or label
• A symbol or design
• A sound 
• A product package

Requirements for a strong trademark

To receive approval for trademark registration from the USPTO, your mark must be creative or unique. 

Strong trademarks are extremely specific and will apply only to your type of goods or services. For example, Dove is both a well-known shampoo brand and a chocolatier. The companies are unrelated to one another, and both have trademark protection. Delta is both an airline and a faucet maker.

To be considered a strong trademark, it must be fanciful, arbitrary, or suggestive.

• Fanciful trademarks: This type of trademark consists of a made-up word or something that only has meaning in relation to the product or service. Example: Kodak and Xerox.
• Arbitrary trademarks: This type of mark is an actual word, but it would have no association with the goods or services provided by the company. Example: Apple. If an apple grower tried to register that name, it wouldn’t be allowed. But, the computer and phone company can use it because it’s considered arbitrary and unique.
• Suggestive trademarks: A suggestive trademark uses a word that suggests some quality of the product or service. Example: Netflix. This term is suggestive of what they offer, internet flicks or films. 

A strong trademark is one that’s inherently distinctive. The trademark should quickly and clearly identify your products or services from others. The stronger your trademark, the more likely you are to receive trademark registration and to be able to protect it from trademark infringement by others.

Owning vs. registering a trademark

The moment you begin using your unique brand name and symbols, you become a trademark owner. You establish the rights to your trademark by using it. If you use it first, it's now considered your intellectual property. Non-registered trademark rights are limited to your local area. If you want to expand your business across states, you’ll need to register your trademark to receive a higher level of protection.

While going through the trademark registration process is not a requirement, especially for local use, a registered trademark provides more, broader legal protection.

A registered trademark gives you nationwide rights to use your marks and brand name. If your business expands online or is gaining in popularity, it’s smart to consider trademark registration at that time. A trademark attorney can help you decide whether it's time to register your trademark with the USPTO.

What can’t be trademarked?

Trademark law restricts what can and can't be trademarked. A weak trademark is more difficult to protect from competitors and won't be registerable under federal intellectual property law.

A trademark isn’t eligible for registration if the mark:

• Is too similar to a mark that’s already in use
• Contains descriptive words or commonly used phrases
• Is too generic
• Uses religious quotations or passages

Trademark dilution

An uncommon but interesting aspect of trademarks is trademark dilution.

When a brand name and trademarked term becomes so common that it replaces the noun or description of a product, it’s known as trademark dilution. This can happen to a registered or unregistered trademark.

An example of trademark dilution is Kleenex. Kleenex is a brand, but the name and term have come to be used as the name of the product we’re asking for. When we need to blow our nose, we no longer ask for a facial tissue but a Kleenex.

While brands want to be well-known, there is a point where the potential drawbacks outweigh the benefits. When all facial tissue is commonly referred to as Kleenex, no matter the brand that produced it, it can cause problems for the brand. Trademark dilution can have negative effects on the trademark owner.

Other brands that suffer from trademark dilution include:

• Bandaid
• Q-tips
• Velcro
• BubbleWrap
• Google
• Popsicle
• Wite-out
• Crock-Pot
• Taser

Through trademark dilution, all of these brand names have become synonymous with the products they created. Many consumers use the brand name to refer to the product, even when it’s produced by another company entirely.

Types of trademarks

A trademark is the umbrella term for any brand mark that’s protected under intellectual property law. Underneath that are a variety of different types of marks. Those include:

• Service marks: These marks represent a brand that provides a service instead of a product. A mark might be considered both a trademark and a service mark, depending on the company and what they sell. Example: McDonald’s golden arches and Starbucks’ green medallion would be examples of logos that are a service mark. 
• Design or logo marks: This type of mark is a company’s logo or the graphic that represents the company. Example: The Nike swoosh.
• Collective marks: This type of mark is used by a collection or association. Example: Members of the Girl Scouts are allowed to use the marks associated with The Girl Scouts of America.
• Certification marks: These marks represent that a product meets a specific set of standards. Example: The USDA’s Organic seal.  
• Trade names: A trade name is the name a business uses that isn’t its legally registered name. This might also be known as a DBA or “doing business as” name. Example: Most of us know the retail giant as Walmart, which is its trade name. The business’s true name is Wal-Mart Inc. 
• Trade dress: This is the overall visual appearance of a brand’s product and packaging. Example: Tiffany’s blue boxes. 
• Sound marks: These are the sounds or jingles associated with a specific brand. Example: Microsoft’s email ping or startup sound.

Trademark law: How do you protect a trademark?

You do not get trademark protection by registering your mark with the U.S. Patent and Trademark Office (USPTO). Trademark protection comes from using a mark in commerce to identify the source of your business’s goods or services.

A mark may have any of the following types of trademark protection:

• Common law trademark protection: If you have been using a mark but have never registered it, your mark may have common law trademark protection. You may be able to prevent others from using your mark if you can show that you used it first, but your trademark rights may be limited to the geographic areas where you do business.
• State trademark protection: You may also have filed a trademark with the state where your business is located. This will help you protect your trademark within the state, but it does not give you nationwide protection.
• Federal trademark registration: You can register your trademark with the USPTO. This registration gives you nationwide protection and establishes when you began using the mark, as well as provides other advantages.

The best thing trademark owners can do to protect your brand and trademark or service mark is to continue using it. If you want to grow your business or do business across the country, consider federal trademark registration through the USPTO.

What’s the difference between different types of intellectual property?

Trademarks, copyrights, and patents all protect your rights to your intellectual property. However, each protects a different type of property.

Copyright

A copyright protects an original work of authorship, such as written material, a photograph, a drawing, or a song. Copyright protects your right to reproduce, perform, distribute, or display your work or to create other works based upon it. Your work is protected by copyright as soon as it is created, but you can also register it with the U.S. Copyright Office. A copyright generally lasts 70 years. For example, J.K. Rowling owns the copyright for the Harry Potter books.

Patent

A patent protects an invention, design, or process. If you have a patent, you have a right to make and sell your invention for a limited time, depending on the type of patent you’ve gotten. In exchange for this right, you disclose your invention to the public when you file your patent application. You must apply to the USPTO to receive a patent. Once the patent expires, usually after 20 years, anyone can produce, market, and sell the invention. An example of this is new pharmaceuticals. Companies invent and patent a new drug. They can sell that drug for a limited amount of time. Once the patent expires, other companies can sell generic versions of that same drug to consumers. 

Brand

A brand is a marketing concept. It can encompass the identity or look of your brand but also how it makes customers feel. Anything a customer associates with a specific company can be part of the brand. For example, a specific color of lime green is closely associated with Spotify’s brand.

FAQs

How do I get a trademark?

Simple: You can receive trademark or service mark protection simply by using a unique mark, logo, or product name. Unregistered trademarks still receive protection. If you want more protection, you can go through the trademark registration process with the U.S. Patent and Trademark Office. 

How long does a trademark last?

How long a trademark lasts varies depending upon whether or not it’s registered and what type of registration it has.

A common law trademark may last for as long as you continue to use the mark, though you could lose your protection if you fail to enforce your rights.

Under trademark law, federal registration lasts for 10 years and is renewable for additional 10-year periods. State trademark registrations are governed by state law, and the requirements vary from state to state.

What makes a trademark strong?

A strong trademark will be unique and creative. The strongest trademarks fall into these three categories: suggestive, arbitrary, and fanciful. The stronger your trademark, the more protection you have from trademark infringement.

What do the different trademark symbols mean?

A trademark can be indicated by three different symbols, each with a slightly different meaning.

• ™: This symbol denotes a common law trademark. It can be used by anyone, regardless of whether or not it's registered with the USPTO.
• ®: This symbol represents registered trademarks. Only marks that have received approval and are registered with the USPTO can use this mark.
• ℠: This mark represents a service mark. Like the ™ symbol, it can be used by any business that offers a unique service to customers.

Do I need legal help to apply for federal trademark registration?

Unless you’re applying for a trademark from outside the U.S., you don’t need a trademark attorney. The process can be complicated, so you may benefit from the help of a lawyer, but it’s not required.