Learning the legalities of running a business means introducing yourself to a lot of rules, practices, and terminology that can be somewhat confusing. Copyright, insurance, business incorporation, and trademarks are a few examples.
In this post, we’ll shed light on trademarks. We’ll look at what parts of your business can you trademark and when you might consider registering a trademark to protect your business.
Table of contents
What is a trademark?
A trademark is a source identifier, which is anything that identifies a product or brand as different from others in the market. This can include a unique combination of letters, sounds, symbols, or designs. Trademarks for services are often called service marks.
For example, you can trademark:
- Branding design assets
- Company names
- Brand names
- Product names, including digital products and services
- Slogans and taglines
- Nicknames related to your business or trademarks
- Custom sounds
💡Note: Creative works like art or books are usually covered by copyright, not trademarks.
Types of trademarks
There are two kinds of trademarks: unregistered and registered trademarks.
- Unregistered trademark: These trademarks haven’t been submitted and approved by the US Patent and Trademark Office (USPTO). However, these trademarks are still protected under common law, only in your geographic region. These trademarks are labeled with ™.
- Registered trademark: These trademarks have been registered and processed by the USPTO. They have greater protections under the Trademarks Act, and these protections are extended throughout the US, beyond your geographic region. These trademarks are labeled with ®.
Unregistered trademarks offer some legal protection when you’re starting out, but you’ll want to consider trademark registration when your business picks up traction.
How to register a trademark in 3 steps
As soon as you start a small business or develop a product, you likely have some source identifiers, including your business name and your logo. But do you need to be thinking about trademarks right away?
There are two ways to get a trademark, and one is more formal (and involved) than the other. You can informally get a trademark by doing business using a name or a logo, and establish your reputation and mark that way. This is your unregistered or common law trademark.
But if you want full legal protections, you’ll need to take the following steps to get a registered trademark with the USPTO. You can do a portion of this work yourself by following the tips we outline below. However, to get a definitive answer about your ability to use a specific trademark, it’s best to consult with a trademark attorney.
1. Confirm the trademark is available
When you have a unique idea about a name for your brand or products, it’s a good time to see whether they’ve already been registered. You can do this as part of your competitive analysis. Look up your potential trademark using online databases that are maintained by the governments of the countries you do business in, starting in your home country.
Here’s a shortlist of databases to check. Remember to check the database for each country in which you do business:
- United States: United States Patent and Trademark Office (USPTO)
- Canada: Canadian Trademarks Database
- Australia: Australian Trade Mark Search
- EU: European Union Intellectual Property Office (EUIPO)
When searching for your trademark term, use quotation marks to get an exact match, and run a search for each of the terms within the phrase, if there’s more than one. The quotation marks will ensure you’re getting exact matches for your search, so you’re not wading through largely unrelated results.
If no one’s using your chosen term, phrase, or name, that’s a great indication it could be available.
Even if results do show up for your chosen trademark terms, that doesn’t mean they’re immediately off the table. In the US, trademarks are based on use, so if it’s not being used—even if it’s been registered—you might be able to challenge the registration and claim the name for your business with the help of a trademark attorney.
For example, someone may have registered a trademark but since gone out of business, and given that US trademarks are based on use, that could signal that the trademark is available.
After you’ve searched through the databases, check Google as a next step. Go to Google and run the exact same searches to see what pops up. If you find results in the trademark database, you know you’re going to get hits in Google, but you want to see how many and how active they are. Ideally, even if you get a few results, you’re looking to see if there’s been any activity on those sites.
Finally, search social media to see if there’s any activity using the trademark you’re considering—tools like Namechk can surface social profiles using your desired name. If you don’t find anything recent, that’s another promising sign.
2. Officially register the trademark
Once you’re ready to officially register a trademark, get in touch with someone who can provide legal advice specific to your business. Consider working with them to perform a more thorough search of what else is out there before you invest the time and resources to apply for a trademark registration.
Only a licensed attorney would be able to definitively give you advice and tell you whether it’s worth pursuing the trademark registration. The process of registering your mark can also be fairly technical and involved, so it meets the criteria of something that’s much better to outsource to an expert.
Remember, the application process for registering a trademark will differ from country to country. Seek advice from a professional who understands the requirements for your specific region.
3. Protect your trademark
Ensuring trademark protection means you’ll need to both consistently use the appropriate trademark indicators and take action when you notice someone infringing on your mark.
Use your ™ or ® marks
You’ve probably seen them around, but it’s easy to skip over these trademark symbols until you want to use them for yourself. Here’s a breakdown of what each one means and when to use it:
- ™ : You can start using the ™ symbol on any name or logo you consider a trademark, but make sure that you’ve done all the required research ahead of time to ensure you’re not infringing on an existing mark.
- ®: This is the symbol for a registered trademark, and you can use it once your trademark is officially registered.
Take action against trademark infringement
Protecting your trademarks goes further than marking them appropriately. You also need to watch out for people copying or using your trademarks, or using similar marks in your industry. In trademark law, failing to take action to protect your mark could eventually result in losing your trademark because of a concept called dilution.
If someone comes out with a product or a brand using a registered mark that you have—or something similar and in your industry—speak with an attorney. Many times, they can reach out to the offender and handle it on your behalf.
Losing your trademark happens when you can no longer claim the original mark, whether it’s your logo or your product names, is a source identifier. If everyone in the industry is using the same naming, it no longer identifies something that’s uniquely yours.
You risk losing your mark by not taking action. After all the work and money that goes into getting a trademark, taking action against infringement is crucial to protect your mark and your investment.
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💡 Note: Defending your trademark is something best left to the professionals, especially when it comes to contesting a pending trademark application. Focus on what you do well—running your business and creating great products—and let the lawyers handle the details of protecting your marks.
Trademarks can help protect your business
There’s a lot you can do to proactively protect your intellectual property when you’re running a business, and trademarks are just one part of the overall picture. While they’re not a silver bullet, and you’ll still need to be vigilant for infringement, especially in your industry, trademarks can offer a form of protection for the hard work you put into building a brand that stands out.
What is a trademark FAQ
What is a trademark?
A trademark is a source identifier. Anything that identifies a product or brand as different from others in the market could be considered a source identifier. This can include a unique combination of letters, sounds, symbols, or designs that represent distinctiveness.
What is a registered trademark?
A registered trademark is a more official form of a trademark, indicating that the trademark has been officially registered with a federal trademark office. Registered trademarks are often indicated with the ® trademark symbol.
Why are trademarks important?
It is important to protect yourself, your brand, your ideas, and your creations. These are the things that make your business or personal brand unique. Without protections like trademarks, anyone can copy or steal your work. Registering a trademark usually gives you exclusive rights to use that trademark for a specific period of time, and does give you legal grounds to take action on theft of your intellectual property.
What is the difference between a copyright and a trademark?
Copyright and trademarks are similar in some ways. They are both forms of intellectual property, which can include tangible things or intangible assets like business ideas or processes. These two forms of protection differ in that they protect different types of intellectual property. Copyright protection applies to creative works like art or books, while a trademark usually protects assets associated with a brand (trade name, logo, etc.). The requirements and registration process for each will differ as well.
How much does a trademark cost?
In 2022, The US Patent and Trademark Office lists its trademark registration fees for TEAS Plus and TEAS Standard as $250 and $350 USD, respectively. TEAS stands for Trademark Electronic Application System and the Plus option is a simpler version of the Standard option that has fewer requirements. For non-US residents, check the trademark office in your country for specific fee information.
How can I register a trademark?
Consult the trademark office in your country to determine the required documents and fees for starting the application process. You will also likely wish to consult with a lawyer who specializes in this area and is familiar with federal trademark registration.
Note: This blog post is for informational purposes only and does not constitute professional legal advice. Please consult independent legal advice for information specific to your country and circumstance.