Trademark Basics for Small Business Owners

Why Trademark Protection
It is never too early to think about legal protection for your business name, logo, tagline, or other words or images you use in your business. You may feel like nobody knows your business name yet. The truth is this is exactly the time to protect it, before anyone else has reason to try to leverage your brand in competition.

What is a Trademark

A trademark is a word or image that tells consumers the source of a product or service. Everywhere you look you will see businesses using a trademark to identify and distinguish themselves in the marketplace.

As soon as you begin using a name or a logo (a "mark") in business, you have common law trademark protection if you are the first to use the mark and if it does not violate another company's registered or established mark. You may not know however, if you are the first to use it. You also may not know if someone else has gotten federal trademark registration on that word or image.

Why Register a Trademark

Registering a trademark will do 3 things for you:

  1. The trademark application clearly marks the priority date if someone later applies for the same or similar mark.
  2. The initial trademark search in the United States Patent and Trademark Office ("USPTO") database will tell you early on if you might have a conflict with someone else's registered mark.
  3. Once approved, you have nationwide enforcement rights if someone else uses a name or a mark that is likely to confuse your customer base.

How do You Know if You Can Get a Trademark

In order to get trademark protection, your mark must be distinctive. For example, you cannot trademark the generic term "food," but trademarks have been granted for names like "myfoods," "bliss foods," and "food made fabulous." If you have a distinctive logo, that can also be protected, with or without words. 

You can do a quick search on the USPTO trademark database to see if your business name or tagline is trademarked by somebody else. Even if it is, it is worth further inquiry. If a name is registered for a different category of goods or services than what you provide, it may still be possible to register your mark. This can be a little more complex and will require you to demonstrate to the USPTO that your use of the mark in your area would not cause customers to be confused about the two brands

How to Register a Trademark

You can apply on your own using instructions from the USPTO. The filing fee is $250 for each classification you are seeking protection in. For example, if you were to register "abc foods" as only "staple food products," you would pay one filing fee. If you wanted to also register it as "meat and processed food products," you would pay a second filing fee. 

Choosing to register in only one classification means is that you only have protection in that classification, and someone else might be able to come along and register "abc foods" under the second classification.

The Difference Between Trademark and Copyright

Generally, creative work is covered by a separate body of law known as copyright law. Similar to trademarks, a common law copyright ownership attaches as soon as you create and publish your work (a story, picture, movie, song, etc.). Your ability to protect and enforce those rights is much easier if you register the copyright, which is a separate process from registering a trademark.This can get confusing when it comes to logos. Are logos creative works subject to copyright or a mark in commerce subject to trademark? The simplest answer is that the difference is whether the image is used in commerce to identify your company or your brand. If so, you should get protection under trademark law. In contrast, an image created to illustrate content on your website, like an infographic, is more likely subject to copyright law.

Do You Need a Lawyer to Register a Trademark

You can register a trademark on your own, especially if you find no evidence the name is taken by someone else. If you do this yourself, the only cost is your time and the fees you need to pay to the USPTO. There are also online services that offer filing packages and a basic search for existing marks. 

What you will not get if you go either of those two routes is a specific legal analysis of the likelihood that your mark will be accepted. This is especially a risk if someone else has registered a similar name. You could end up paying the $250 filing fee (or more if you are seeking multiple classifications), which you will lose if the USPTO rejects your application. There is also your investment of time and effort that will be for nothing.

If you know ahead of time that your mark will be challenging to register, you have different choices available to you. You could revise your words or images to facilitate the trademark process. If you are going to have to do this, it is easier to do early in your business life before a wide base of your customers have gotten to know your visual brand.

It is also important to know if there is another trademark owner out there who claims rights to your business name. Even if you don't end up registering your trademark, you could find yourself on the receiving end of a "cease and desist" letter demanding that you stop using your own name. Again, the sooner in your business life that you know this is a risk the better.

How We Can Help

We can help you identify the words and images that are entitled to protection, search the trademark database, and complete the application for registration.  We can also help you respond if you receive a cease and desist letter, and enforce your intellectual property rights if other businesses are using your marks. You can use the button below to schedule a free consultation, or give us a call at (781) 784-2322.

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