All About Trademarks

Establishing a strong brand is pivotal to business success. Protecting that brand is equally important.

Many small businesses overlook an important first step in securing their brand: trademarks.

What Can Be Trademarked?

A trademark is any unique word, symbol, name or device used to identify and distinguish the goods of one seller from the goods sold by another. (An example is Nike’s swoosh.) A trademark allows the seller to protect what is trademarked from use and/or misuse by competitors, while building brand loyalty among repeat customers. Trademarks also help prevent confusion or manipulation of consumers, who come to associate distinct attributes – in particular, quality – with a distinct brand.

From a branding perspective, the following are assets that can be protected:

* logos
* names
* taglines
* packaging

These assets can only be trademarked if certain qualifications are met. A word or phrase that is commonly used or already connected with another product/service in the same industry cannot be trademarked. For example, a generic term like “Search Engine” can’t be trademarked, but a unique name like “Google” can. However, if your name is generic but used in an industry not typically related to the meaning of the term, you may be able to trademark it. A good example would be Apple computers.

As a general rule, you can trademark your business name if you use it when advertising directly to your customers. If you do not use your business name in direct communication to your customers, you probably cannot, because you are not connecting your name to your brand and its attributes. If your business name will be a large part of your marketing, you should consider trademarking it.

Your logo and/or tagline are also good candidates for trademarks. The first litmus test: Is it unique? What makes a logo unique is the combination of the symbol with the company name, its colors and their spatial relationship. If your tagline is a unique phrase, it can also be trademarked. Hallmark’s “When you care enough to send the very best” connects a Hallmark brand attribute (quality) to its product. This tagline helps distinguish the Hallmark brand.

The Trademark Process

It is not necessarily expensive to trademark something. In the United States, whoever establishes priority in a mark is usually considered the owner of it. In other words, if you are the first company to use a unique mark to identify your products or services, you do not need to register your mark to gain rights to it. You must, however, add the trademark symbol, TM, to the mark you are claiming rights to. However, registering a mark through the U.S. Patent and Trademark Office (USPTO) establishes ownership beyond a doubt.

Of course, all of this is dependent on the “uniqueness” of your mark. The Internet is a good way to conduct a trademark search. Visit free websites that display existing trademarks, like those maintained by the USPTO, Secretary of States, or Yellow Pages online. Or, for a fee, choose an online trademark search company. You can also hire a private company or attorney to conduct detailed searches that include misspellings and alternate spellings. It is best to seek an attorney who specializes in intellectual property law.

Trademarks can be registered at the state or federal level. State registrations are less expensive, but also offer less protection. Trademarks are often registered within one industry, but can also be registered in more than one industry. Your best option depends on your geographic area of operation and scope of business. International protection is much more costly and difficult. It is also extremely complicated and expensive to enforce.

If you file a trademark application with the USPTO, they will ensure there are no trademarks similar to yours that currently exist. This process can take months. Do your homework, because if your mark closely resembles someone else’s, your application will be denied.

Keep in mind that the more differentiated your brand is from others in your industry, the easier it will be to protect. Choose a name and logo that distinctly identify your business and will protect it from competitors.

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