What Exactly Is A Trademark?
A trademark is essentially a branding tool. Businesses use trademarks to identify their goods and services and distinguish them from other goods and services in the commercial marketplace. This branding tool may also relate to the identity of an organization as a whole (but only insofar as the organizational identity helps distinguish goods or services).
The concept of "trade name" is often confused with trademark, but it is important for any business owner to distinguish them. A trade name is a business name (usually registered with the Secretary of State in the state of incorporation) that identifies an organization for incorporation purposes. However, successful registration of a trade name does not afford a business additional trademark protection. In fact, many successfully filed trade names conflict with existing trademarks, and use as marks may signify trademark infringement.
You may hear people use "trademark" as a verb (see the third section of this article, for example). When people say they want to trademark something, they are probably thinking of the process of federal registration of a mark with the United States Patent and Trademark Office ("USPTO"). It is not necessary to register your trademark federally to have legal rights associated with a mark, but registration provides important, unique benefits to the registrant. In fact, federal registration is essential to enforce your trademark rights as a practical matter. These issues will be discussed in more detail later in the article.
What Is A Service Mark? Is It Any Different From A Trademark?
When you register a mark related to a service (rather than a product), it is commonly referred to as a service mark. However, for legal purposes, a service mark is treated identically to a trademark, so this article will refer to both of these generically as trademarks, or "marks".
What Sorts Of Things May I Trademark For My New Business?
You may trademark a company name, product name, slogan, logo or other symbol associated with your commercial offerings. Your mark may also consist of a combination of any of these categories (such as a logo combined with a company name).
What Is The Purpose Of Trademark Law And What Protection Does It Offer?
Trademark law is an offshoot of "unfair competition" law, which protects businesses against unethical practices of other businesses. As we've discussed, trademark law protects against these unethical practices as they relate to branding tools that identify and distinguish the goods and services provided by businesses from one another in the mind of consumers.
Trademarks are also a subset of federally regulated intellectual property rights, along with patents and copyrights. Interestingly enough, while federal patent and copyright protection exists to protect you from others copying your ideas, trademark protection exists to protect consumers from others copying your ideas.
When we refer to "protect", we aren't being precise; actually, trademark law provides a bundle of rights against infringers who might trespass on this identity. These rights are enforceable in court. Thus, trademark law functions more like a sword than a shield, because a lawsuit is required to enforce your rights in a meaningful way.
As An Entrepreneur, Why Should I Be Concerned About Trademark Law?
As an entrepreneur, you are probably eager to find ways to set yourself apart from your competition, whether existing or imagined. A distinctive name, a catchy slogan, a memorable logo...these identifiers can all be used to create a positive association with your business. Ultimately, this association will result in more sales.
But what if you invest time and money into creating an identity which conflicts with the legal and intellectual property rights held by others? What if your efforts do not conflict with current marks, but also do not offer you much protection against future copycats, who will inevitably spring up when your business is successful?
So now you have two good reasons to be concerned about trademark law; the upshot is that the changing landscape of business, especially the proliferation of the internet, has dramatically increased the relevance of trademark law in recent years. By allowing businesses to expand cheaply and easily beyond local markets, the internet has opened up a Pandora's Box of potential trademark conflicts. Almost any business is now capable of selling directly to consumers nationally and internationally, and the scope of their concerns about trademark protection must expand accordingly, whether they have strong marks or not. Thus, any new business has to be concerned with the ever-increasing vigilance of existing mark holders.
What Steps Do I Take To Create A Strong Mark?
VeriTrademark has outlined a general approach to securing trademark protection that will work for many entrepreneurs who plan on selling a product or service beyond local markets.
- Spend time creating a distinctive mark.
- Validate this mark via a trademark search.
- Register the mark federally with the USPTO.
Please Click Here for a PDF version.
Please visit the VeriTrademark article A Sensible Approach To Securing Trademark Protection for more detail on how to create a strong mark.
Danny Bronski is an attorney licensed in WA and NY with a legal practice that includes trademark law. Please visit VeriTrademark for more information on trademarks. This article is copyrighted and is not intended to serve as legal advice, but rather as a general approach to the law at the time the article was written (in 2004).
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