Intellectual property (IP) rights, which include patents, copyrights, and trademarks, are created by the government to encourage innovation. While they all serve to protect various aspects of your creations, they each function differently.
A patent protects an invention, such as a new product or technology, ensuring no one can copy or use it without permission. Meanwhile, a trademark focuses on protecting branding in the marketplace—things like the name of your company, a product or service name, logos, or even catchphrases.
Take Nike, for example: they hold trademarks for the name “Nike,” the swoosh symbol, and the phrase “Just Do It.” In total, Nike holds around 168 different trademarks related to their brand. For small businesses and entrepreneurs, it’s important to start by focusing on one or a few core trademarks that represent your brand, building on them as your company grows.
The Purpose of Trademark Law
Trademark law serves two main purposes: protecting consumers from confusion and preventing businesses from profiting off another brand’s hard-earned reputation. If two companies with similar names or branding exist, it can create confusion for consumers, who may mistakenly think they are purchasing from the well-known brand.
For instance, if two entrepreneurs opened a coffee shop and named it “Starbucks,” they would immediately face legal action. Why? Because customers could be confused, thinking they were visiting the actual Starbucks store. Trademark law ensures that businesses maintain distinct identities in the market to avoid this type of confusion. Without trademarks, a company could unfairly benefit from another’s reputation, which is a significant loss for the original brand.
How to Know if Your Brand Name is Eligible for a Trademark
When deciding if your brand name or logo is eligible for trademark protection, consider how distinctive it is. The stronger and more unique your name, the better chance you have of securing trademark rights.
For example, if you open a coffee shop and call it “The Coffee Shop,” you likely won’t be able to trademark that name, as it’s a generic term. But if you call it “Hot and Fresh Coffee,” it’s a descriptive name, which is also harder to protect. On the other hand, names that are suggestive, arbitrary, or fanciful are more likely to be granted trademark protection.
- Descriptive terms (like “Hot and Fresh Coffee”) can be harder to trademark because they directly describe what the business offers.
- Suggestive marks (like “In-N-Out Burger”) imply something about the business without directly describing it.
- Arbitrary marks (like “Apple” for a computer company) are strong because they don’t have a clear connection to the business’s products.
- Fanciful marks, which are made-up words (like “Renvoke” or “Ozempic”), are the easiest to protect because they have no existing meaning and are unique.
Conducting a Trademark Search
Before settling on a name for your business, it’s crucial to do a trademark search to ensure it isn’t already in use. The process is relatively simple because all trademark filings are public, and you can access the records without a login or fee.
There are two levels of searching: one involves checking the U.S. Patent and Trademark Office’s (USPTO) database, and the other involves a broader web search to see if someone is already using the name in commerce. If there are conflicting trademarks or names that sound too similar to yours, it’s best to consider rebranding early to avoid potential legal issues down the road.
Filing for a Trademark
Once you’ve chosen a name and conducted a search, the next step is to file a trademark application. For businesses that sell across state lines, a federal trademark registration is typically the best option. Even small businesses that don’t operate nationally may qualify for federal protection if they engage in interstate commerce.
The trademark application process includes submitting the required forms and going through an examination process, where a USPTO attorney will evaluate your application for potential conflicts. You may need to revise the application if there are any issues, such as if the name is considered too descriptive.
The Longevity of Trademarks
Trademarks last indefinitely as long as they remain in use and are renewed periodically. Unlike patents, which last 20 years, trademarks can be renewed every 10 years as long as the business continues to use the mark in commerce. For example, large companies like Northwestern Mutual, which has been around since before the Civil War, still hold trademarks on their name and logo.
Renewal is required between the fifth and sixth year after registration, and the trademark owner must show that they are still actively using the mark. If the trademark is not used, it can be canceled, but as long as the business continues to use it, the trademark protection can last forever.
Do You Need a Lawyer to File a Trademark?
While it’s possible to file for a trademark without a lawyer, it’s often recommended to have legal assistance. The process can be more complex than it seems, especially when it comes to accurately describing goods and services, matching the description with the specimen of use, and addressing potential issues with the USPTO.
In some cases, if a business has been using a name for many years, it may be worth filing the trademark even without conducting an extensive search, as the business is already “married” to that name. However, for new businesses, it’s best to be cautious and consider all potential issues before filing.
Final Thoughts
Trademark law is a valuable asset for any business. It helps protect your brand identity, ensures consumers aren’t confused, and can give you exclusive rights to a name or logo. While the process of filing a trademark might seem daunting, it’s well worth the investment to secure your brand’s future.
If you’re considering filing for a trademark or want more information, consulting with an experienced attorney can help you navigate the process and avoid potential pitfalls.
