What is a trademark?
A trademark can be anything that describes your brand. A trademark can be a name, word, slogan, symbol, logo, image, a play on words, a word formed by combining parts of other words that serves to both identify and distinguish a business or product from others in the market. It's intent is to create a brand recognition such that when people see your trademark, they immediately think of your business and the goods and/or services you provide.
Once you have trademarked your business, if someone else makes an attempt to use something similar enough to confuse customers, you have the right to legally protect yourself and stop the other party from using the similar mark.
What is required to register a trademark?
Regardless of whether your mark is a word or words, or an image, in order for your mark to be approved for registration by the United States Patent and Trademark Office (USPTO), the mark must be distinctive and in use in commerce and the marketplace. If you have a mark that is not yet being used in commerce, you can still obtain a trademark by making a good faith argument in writing to the USPTO and use the symbol at some point in the future. There are a variety of reasons why you may want to initiate the trademark registration before using the mark in commerce.
There are four different categories of distinctiveness for trademarks: descriptive, suggestive, fanciful or arbitrary, and generic.
Suggestive and arbitrary marks are considered inherently distinctive with their eligibility being determined by whoever is first to register them.
Descriptive marks, including geographic terms, and personal names must have an established secondary meaning in the consumers' mind in order for approval to be granted. You cannot trademark a term that is considered generic.
Depending on the mark that you choose, application for trademark can be anything from rather straightforward to complex and confusing requiring the persuasive skills of an attorney.
Why are trademarks important?
It is a good idea to register the name of your business as a trademark along with any slogans, tag-lines or logos that you want people to readily associate with only your business. In the event that another business tries to use the same or similar name, logo or slogan, you will have legal recourse to force them to cease using your mark. A trademarked name marks all of your products and services as yours and no one else's and can also protect you from counterfeit products.
Trademarks are usually registered at the federal level, so they are recognized in all 50 states. State registration is possible, but it provides a much more specific level of protection.
With a trademark, you retain exclusive rights to mark your products, service offerings, brochures, etc. in a way that identifies your brand, with no one else being allowed to use your symbol, name, or slogan in your particular category of the goods and/or services you provide.
Trademarks are also used as a way of protecting consumers. When businesses are responsible for any products or services bearing their trademark, they tend to take more pride in products. To maintain a good reputation, trademarked companies will often work harder to provide quality services and products. Trademarks are an important part of running a successful and client-focused company.
What is a Trademark Search?
Before an application is made to register a trademark with the USPTO, we highly recommend performing a comprehensive trademark conflict search to assess the risk of your mark conflicting with another mark which could result in costly fines, penalties and legal action, as well as the need to change your company name, logo or slogan. By performing this search in the beginning stages of your business lifecycle, you will be able to steer clear of costly roadblocks before they become issues. Our comprehensive search not only looks at marks in the federal registry, but we also look in state registries, social media and other online presence that may create a conflict.
In contrast, a basic "knock-out" search simply looks for exact matches or very similar matches of trademarks registered or in the process of being registered in the USPTO trademark registry. It does not look for same or similar marks in other areas such as social media, state trademark registries or internet companies.