What is a trademark?
A trademark identifies the source of a product or service. It tells consumers what company or individual is behind what they are buying. A trademark can also indicate a certain quality, price, or other important characteristic that you want your customers to identify with your brand. A trademark can be any of the following:
- Words or phrases.
These types of marks, including others not listed above, are what distinguish your business from others. When you use your brand as a trademark, you are asking your customers to recognize your logo, symbol, name, or design as an indicator of your company's products or services, and all the positive associations and goodwill that you have hopefully generated.
In the U.S., most businesses generate some trademark rights simply by using their product name, logo, or design (referred to as common law trademark rights). However, many do not take the extra step to register the trademark with the United States Patent and Trademark Office (USPTO). Trademark registration demonstrates that the USPTO recognizes the registrant as the rightful owner of the trademark, unless a challenger proves otherwise, which can be difficult to do. A federal trademark registration with the USPTO has other benefits. These include giving your name nation-wide priority, stopping infringing products from being imported or sold on e-commerce sites, or even transferring of a domain name that infringes on your trademark rights. There are many other benefits, as described below.
If someone uses your registered trademark, you will have a much easier time taking legal action to stop the unauthorized use. You can turn to the registration to help prove essential facts, such as ownership or priority of use, which may protect your rights if there is ever a question about who owns the mark or used it first.
Is it necessary to trademark your business name?
Your brand is a valuable business asset. While you have common. law trademark rights by using the brand name in commerce, a federal trademark registration is a good idea for several reasons.
1. You ensure that you can use the name or logo that you want to use.
As part of the registration process, you should conduct a search for the trademark name or logo that you want to use for your business. You will conduct that search in the USPTO's database of pending or registered trademarks, which will tell you if there are other businesses using the same or similar marks. To ensure that you uncover all potential obstacles to using your trademark, you should also do a general internet search for uses of the name for similar products or services. This will help identify common law uses of the name that may still pose a problem to your use of the mark, even if the name is not registered with the USPTO.
The search process may seem tedious, but going through this extra step may help you avoid violating other registered, pending, or common law trademarks.
2. You keep others from profiting off your trademark.
When you register your trademark, you increase legal protections for your business name or other business marks. These protections apply regardless of whether the infringing use was intentional or merely an accident or mistake.
Those who wrongfully use your business name, for example, can decrease your profits, harm your reputation, confuse your customers, and more. Taking legal action against these businesses can help you recover damages if you face any financial losses. It can also prevent future losses if you are able to stop others from continuing to use your business name as their own.
3. It is easier to prove that the mark belongs to you.
The USPTO's Trademark Trial and Appeal Board (TTAB) will determine who was the first to use a trademark if there is any legal dispute. The company with a registered trademark will have the upper hand in a dispute with someone who does not. Showing a valid trademark registration as part of a Cease and Desist Letter can help to stop the infringing use. A trademark registration includes a date of first use, which is a critical piece of evidence in establishing superior trademark rights. The burden of proof is higher for someone without a trademark registration because they will have to use other evidence, which may be limited or of questionable validity, to prove the first date they first used the trademark.
Keep in mind that the business that used the trademark in commerce first actually has superior rights, and if they can prove their date of first use is before the other party's date of registration, they may very well succeed in proving they have superior rights. Proving first use, however, can be difficult, and this is one of the reasons why registration is recommended.
4. You show the public that you own the mark.
If you register your trademark, you can put a small symbol that looks like an R with a circle around it (®) next to your name, logo, or other mark.
This type of symbol shows everyone that you have not only registered your trademark, but you are ready to defend it. Before you get a trademark registration, you can still indicate that you are claiming trademark rights in the name by using the "™" symbol after your trademark.
5. You have nationwide trademark protection.
States often require that you register your business name with the Secretary of State or a similar entity. However, that registration shows only that you operate in that state, it does not protect your brand if used in another state.
When you register your trademark with the USPTO, you may acquire legal protection throughout the United States, not just in your state.
When should you trademark your business name?
You do not have to register your trademark, but it may be a good idea. Registering your trademark may be especially important if:
- Your business operates in several states.
- Your business is successful and you have concerns about others stealing or inappropriately using its name.
- Your name is very unique.
- Your business name may be considered similar to that of another business and you want to avoid any future disputes.
Registering your trademark takes time and money, but it is an investment in your company's intellectual property, which is a valuable asset that can be bought, sold, or licensed. A trademark registration could save you thousands of dollars by avoiding a legal dispute down the road.
So when is the right time to register a trademark? There is no easy answer to this question because the right time depends on your particular business and industry. A trademark lawyer can help you determine the best strategy for the timing of your registration.
Do I need a lawyer to register my trademark?
U.S. citizens do not need to use a lawyer to register their trademark. Foreign companies or individuals are required to have a U.S. licensed lawyer represent them in a trademark application. However, you may want to get some additional help to ensure your registration goes smoothly and you are following the right process.
Rocket Lawyer Trademark Services can help you with the entire process. Our knowledgeable staff and lawyers are ready to answer your questions and get your trademark registered at a reasonable price. If you need answers to specific trademark questions, reach out to a Rocket Lawyer network attorney for fast and affordable advice.
This article contains general legal information and does not contain legal advice. Rocket Lawyer is not a law firm or a substitute for an attorney or law firm. The law is complex and changes often. For legal advice, please ask a lawyer.