There are several original assets a business may trademark for their brand. A business name, logo, design, phrase, tagline, and brand mascot may all receive trademark registration. These assets are part of the company’s intellectual property.
What is a Trademark?
A trademark protects words, phrases, symbols, designs, and logos for a business. These creative marks distinguish a business from its competition and emphasize its uniqueness to the world.
Aside from gaining and building recognition with your customer base, filing for a federal trademark is an important form of IP protection. The registration ensures the owner has exclusive rights to the mark. If anyone else attempts to plagiarize or use your mark without authorization, they are infringing upon it. The owner has the rights to take legal action to protect their IP.
Does a trademark expire? The short answer is no. If the company is active and in business, its trademark will never expire. This bit of compounding interest adds to the business over time. It allows the business to build recognition with consumers for years, and decades, to come.
What Are the Different Forms of Trademarks?
Understanding the types of trademarks available to you is can help you better protect your brand identity. Each form of trademark offers different levels of legal protection and distinctiveness, influencing how well your brand can be safeguarded from infringement. Here are the key forms of trademarks and their significance in the business world:
Generic Trademarks
Generic trademarks refer to common terms used to describe an entire class of products or services. These terms cannot be legally protected as trademarks because they fail to distinguish a specific brand from others in the same category. For example, the word “computer” cannot be trademarked for a computer manufacturing company. In trademark law, generic terms are considered public domain and are available for use by any business. Understanding the trademark meaning in business helps to identify and avoid using generic terms for branding purposes.
Descriptive Trademarks
Descriptive trademarks explicitly describe a feature, quality, or characteristic of the products or services they represent. These trademarks are not inherently distinctive and often require secondary meaning, known as acquired distinctiveness, to gain legal protection. For instance, “Cold and Creamy” for an ice cream brand would be descriptive. While initially challenging to protect, descriptive trademarks can become strong identifiers once they achieve recognition among consumers. This aspect of trademark meaning in business highlights the importance of establishing a distinct identity.
Suggestive Trademarks
Suggestive trademarks hint at or suggest the nature or quality of the products or services without directly describing them. These trademarks require some imagination or thought for consumers to connect them with the associated goods. An example would be “Netflix” for an online streaming service. Suggestive trademarks are inherently distinctive and easier to protect legally than descriptive marks. They strike a balance between being descriptive and fanciful, making them a popular choice in trademark meaning in business.
Arbitrary or Fanciful Trademarks
Arbitrary or fanciful trademarks are highly distinctive and strong forms of trademarks. Arbitrary trademarks use common words in unrelated contexts, such as “Apple” for computers, while fanciful trademarks are invented terms with no existing meaning, like “Kodak” for photography products. These trademarks are inherently distinctive and offer the highest level of legal protection. Their uniqueness makes them excellent for establishing a solid brand identity, emphasizing the critical role of trademark meaning in business for protecting and differentiating a brand.
What Isn’t a Trademark?
Trademarks are often confused with other forms of intellectual property protection, such as patents and copyrights. Understanding these difference between these protections ensures the correct type of protection. This can help you avoid legal pitfalls and ensures proper coverage for your intellectual property.
Copyright
A copyright protects original works of authorship. Some forms of authorship which may qualify include literary works, performing arts, visual arts, motion pictures, photographs, digital content, and architectural works.
Doing Business As Name (DBA)
Trademarks protect media which distinguishes a business. You may file a trademark at the federal level and grant its owner exclusive rights to the name. A DBA is not a corporate name. You may use a DBA to legally conduct business under a name which is different from your existing name.
Unlike a trademark, the owner of a DBA may only claim the name on the state level. If you file for a DBA in the state of California, you discourage other Californians doing business in the state to file for the same DBA. However, your chosen DBA may be filed for and use by business owners in other states such as Washington or Nevada — so long as no other companies are using the same DBA in these states.
When Should I File for a Trademark?
Typically, the best time to file for a trademark is to do it as soon as possible. However, if you decide to wait because you plan to use the trademark later it’s a good idea to prepare to specify your “basis” for filing in your application.
“Use-in-Commerce” Basis
Applications which file under the use-in-commerce basis must already be using the mark in the sale or transport of goods or in commerce between the United States and another country. The mark must appear on the goods, such as on a label or tag, or on displays associated with the goods. It must be used in the sale or advertising of services.
You may establish “use-in-commerce” basis by sharing the date when you first used the mark anywhere and the date when the mark was first used in commerce. Your application must include an example which shows how the mark was used in commerce.
“Bona Fide Intent” Basis
Let’s say your mark is more than an idea. But it isn’t quite market ready. File under a “bona fide intent” basis. You may supplement the intent to use the mark by creating sample products and drafting a business plan.
“Intent-to-Use” Basis
What if you haven’t used the mark, neither on goods nor in commerce, but plan to do so in the future? You may file under an “intent-to-use” basis.
Different Trademark Symbols Explained
Trademark symbols are essential for indicating the legal status of a trademark and asserting ownership rights. The ™ symbol denotes an unregistered trademark, signaling that a brand name or logo is being claimed as a trademark. The ® symbol indicates a registered trademark with the United States Patent and Trademark Office (USPTO), providing enhanced legal protection. Lastly, the ℠ symbol is used for service marks, specifically representing services rather than products. Understanding these symbols is crucial for proper trademark usage and protection in business.
| Symbol | Meaning | Legal Protection | Usage |
|---|---|---|---|
| ™ | Unregistered Trademark | Basic protection, asserts ownership | Used for goods, indicates claim of trademark rights |
| ® | Registered Trademark | Enhanced protection, legally recognized | Used for goods, only after registration with USPTO |
| ℠ | Service Mark | Basic protection, asserts ownership | Used for services, indicates claim of trademark rights |
How to Register a Trademark
1. Conduct a Search
The best way to determine if your trademark is available is to conduct a trademark search prior to filing an application. Conducting a search allows you to see if your trademark is available for public registration.
2. Consult an Attorney
Prior to filing your application, it is possible you may have additional questions about the filing process.
Rather than attempt to DIY the process on your own, seek out the help of a trademark attorney. They may answer any questions you have about filing a trademark application and assist you so you do not make any mistakes regarding your specific situation.
3. File a Trademark Application
Once you have conducted a search, consulted an attorney, and feel confident you are ready for a trademark, it’s time to file a trademark application. Reserve the mark by filling out an application and paying a filing fee.
Difference Between Trademark, Patent, and Copyright
| Trademark | Copyright | Patent | |
|---|---|---|---|
| Purpose | Protects brand names, logos, and slogans | Protects original works of authorship (e.g., literature, music, art) | Protects inventions and discoveries |
| Duration | As long as it is in use and properly renewed | Life of the author plus 70 years (varies by jurisdiction) | 20 years from the filing date (varies by type and jurisdiction) |
| Registration | Optional but provides enhanced protection | Automatic upon creation, registration optional but beneficial | Required for protection |
| Scope of Protection | Prevents others from using similar marks that could confuse consumers | Prevents others from copying or using the work without permission | Prevents others from making, using, or selling the invention |
| Examples | Company logos, brand names, slogans | Books, music, films, artworks | New machinery, pharmaceutical drugs, technological processes |
Wrapping Things Up
Trademarks play a crucial role in protecting the unique elements of a business, such as names, logos, and slogans. Understanding the different types of trademarks and their legal protections helps businesses establish and defend their brand identity. It’s important to distinguish trademarks from other forms of intellectual property like copyrights and patents, ensuring comprehensive protection for a business’s creative and innovative assets. This knowledge empowers businesses to navigate the complexities of intellectual property rights and maintain their competitive edge.