Wow, it's been a while since my last post! We've been busy, busy, busy helping clients start companies and expand their businesses. Recently, we've seen quite a few people come through our doors and inquire about protecting their company brand. Legally protecting one's brand is key, especially with so many millennials starting new clothing lines, travel service companies, and possibly franchising an existing businesses. All of these kinds of businesses and more rely on branding. So what is a trademark and how does it relate to your brand?
A trademark can be a word, slogan, symbol, design, or a combination of these things that distinguish a product or service. This may include a logo, or words that are displayed in a stylized form. A trademark identifies a source of goods, and a service mark identifies specific services. For this blog and most often you will see trademark being used to refer to both goods and services. Trademarks also are distinguishable from copyright which, protects original artistic and literary works. Through registering a trademark with the United States Patent and Trademark Office, you create a business asset that can be licensed, sold, and may appreciate in value over time as your business grows. Registering a trademark grants you the exclusive use of it and a presumption of ownership that could entitle you to monetary damages if someone uses your trademark.
Submitting a trademark for registration does not automatically guarantee that the trademark will be granted. There are a number of considerations when selecting a trademark, and this blog will only address a few.
First, you must avoid selecting a mark that has a likelihood of confusion with another mark, particularly if the goods or services are related to or are the same as the goods or services of another company's trademark. It is important that a search is conducted to make sure you are not selecting a mark that is already in use by another company. If an ordinary prudent purchaser would be likely to purchase one item, believing he or she was purchasing the other, then this constitutes infringement.
Second, you want to choose an inherently strong mark. An inherently strong mark could have inventive words ("Fanciful"), or be "suggestive" but, a weak mark will be generic and descriptive. A suggestive mark suggests a quality or characteristic of goods and services and requires a subtle leap in thought for the consumer to determine the exact nature of the goods. On the other hand a descriptive mark merely describes the goods or services being provided. "Good Food" would be an example.
Lastly, you will also want to decide exactly what you want to trademark. Will you choose your business name? Or, will you trademark your logo? These are two separate things in the world of trademark. When you register your company name, you protect the name itself as a “standard character mark.” Registering a logo grants protection to the design, style, and sometimes colors in the logo. In an ideal world, without fiscal constraints, you would want to trademark both the business name and the logo, but realistically many startups are strapped for cash. When you register your name, you protect the words themselves and you can prevent others in your industry from using your business name, or anything confusingly similar, regardless of its styling. However, keep in mind that to be registered in the first place, you have to choose a mark that qualifies for registration.
Hopefully these few short tips have given you a basic understanding of trademark law and what to consider. A licensed attorney can assist with the filing of an application and can also help you determine how to respond in the event your application is rejected. In the end, it is important that you protect yo self!