Trademarking: How to Do It, and Why You Should
Many small business owners consider trademarking a matter for large corporations. However, registering a trademark to protect your intellectual property can be beneficial to many companies, from multinational corporations to small town Mom and Pop operations. Here is a short walk-through of trademarking, the trademarking process, and why you should consider it for your own small business.
A trademark, basically, is a name, word, logo, or another symbol that represents your company. Many companies spend a lot of money and time developing an appropriate trademark for their company. This trademark is identified with that particular company and is an integral part of the corporate brand. These companies, therefore, want to protect its integrity while also establishing the symbol as undeniably theirs. Companies can do this through a process known as a trademark.
Many people don’t think trademarking is necessary, especially for small regional businesses. It’s true that a trademark automatically belongs to you once you begin using it, providing the trademark is not registered to someone else or being used by a company in your geographical area. However, there are several distinct benefits to registering the logo designs, symbols, and phrasing you have chosen to represent your business.
There are many good reasons to register your trademark. First, it gives you priority over the trademark. If you don’t register a trademark, you are only entitled to use it in your area and industry. If someone in a nearby area or in a similar but distinct industry decides to use a similar trademark or even the exact same one, you may not be able to stop them. This can affect your business, diminish your branding, and cause a lot of uncomfortable confusion.
This brings us to another good reason to register a trademark: the right to sue when your trademark is inappropriately used, as well as the right to recover money from these trademark infringement lawsuits. In some cases, you can even bring criminal charges against people who have used your trademark unlawfully. Simply having a registered trademark can win the case for you, because a trademark is government confirmation of your right to that symbol, name, or phrasing and can protect you from trademark infringement.
In an increasingly global economy, there is another excellent reason for trademarking. Once you have completed the trademarking process through the USPTO, you can stop goods bearing your trademark from being imported from a foreign country. While it may seem unlikely, many companies find themselves in the uncomfortable position of being confused with foreign companies using a similar trademark. If this company produces goods that are inferior to yours, you have compelling reasons for stopping these imports.
If you have a trademark registered in the United States, you may also be able to register your trademark with other countries should you want to expand your sales to other nations. This is important because it gives you a foothold from which you can take your company to its highest possible level of success. If your trademark isn’t registered in your home country, it may be almost impossible to get it registered in foreign places.
The government agency that oversees trademarking is called the United States Patent and Trademark Office, or USPTO. There is a process for registering your trademark. While this is a long process and sometimes a complicated one, it is the only way to reap the benefits of a registered trademark.
The first step to registering a trademark is to make sure your trademark is subject to trademark law. It should not be generic or in common use. Further, you will need to make sure that there is not a similar symbol or phrase already trademarked. To do this, you can search the database at the USPTO website. This can be a time-consuming project, but it is important to make sure you are not inadvertently taking someone else’s trademark. While the USPTO does not require that you search for trademarks similar to yours, it will save you from spending valuable time and money pursuing something that is already taken. This can be an expensive mistake; if you apply to register a trademark that is found to be taken, you will lose your application fees as well as any money you spend on an attorney.
The next step is to file a trademark application. You can file an online trademark application too. There are two different applications that apply to diverse situations. If you have already been using the trademark, you will use the regular application. If you are still in the planning processes, there is a special application for you: the Intent-to-Use application. If you choose the second route, be aware that it is more complicated and can take slightly more time because you will have to file other paperwork once you actually start using the trademark.
You can also either mail or hand deliver a paper application to the USPTO at the following address: Commissioner for Trademarks, P.O. Box 1451, Alexandria, VA 22313-1451. Applications by fax are not accepted.
After the USPTO determines that you have met the minimum filing requirements, the application is forwarded to an examining attorney. This may take a number of months. The examining attorney reviews the application to determine whether it complies with all applicable rules and statutes and includes all required fees. Federal registration of trademarks is governed by the Trademark Act of 1946, 15 U.S.C. §1051 et seq., and the Trademark Rules of Practice, 37 C.F.R. Part 2. Once your paperwork is complete and turned in, the USPTO will either deny your application or register the trademark for ‘opposition’. This is a tentative registration that gives other companies who may be using the trademark to protest your claim on it. If someone protests, you may be stopped from registering the trademark. Otherwise, your trademark will be officially listed on the Primary Register or Supplemental Register as belonging exclusively to you and your business.
If the mark is published based upon the applicant’s bona fide intention to use the mark in commerce, the USPTO will issue a NOTICE OF ALLOWANCE about twelve (12) weeks after the date the mark was published, if no party files either an opposition or request to extend the time to oppose. The applicant then has six (6) months from the date of the NOTICE OF ALLOWANCE to either:
Generally speaking, if you are applying for the trademark application yourself directly with the USPTO you are looking at around $500 including application fees which are non-refundable. If you decide to go with a trademark attorney then your costs could vary anywhere from $1200 to $5000+.
The amount of time it takes to get through the trademarking process varies from case to case. However, you will receive a receipt approximately six months after filing. This receipt will have a serial number that you can use to track your application. While the average time from filing for a trademark to receiving that trademark is around 6-9 months, but it can be as short as a few months to as long as several years.
Is registering a trademark a long and complicated process? As you can see, it definitely takes multiple steps and a little persistence to get through the trademarking process. However, this expenditure of time and money is more than worth it. Registering a trademark ensures that your name will always belong to you and that you will have ultimate control over who uses it, and how.
Logo Design Trademark and Copyright Protection
Trademarks, patents and copyrights may sound all the same to lay people. But there are actual differences especially in the context of logo design. In a nutshell, copyright is the protection for creative works put in tangible mediums of expression. Trademark encompasses taglines, slogans, business names and other identity markers in a marketplace. A patent recognizes a novel idea or invention.
However in logo design, these three terms converge and sometimes overlap with each other. What does a trademark protect as opposed to a copyright? The answers may be tedious and too technical. But a logo designer should be aware so that he or she knows the rights and responsibilities of the profession.
The Role Of Trademarks For Business Logos
Trademark is easily associated with the corporate world. It is used to protect things, images and references associated to a business such as a tagline and more importantly, a logo. Business logos are automatically protected by a trademark. After all, this image is the representation of a brand.
Trademark has a broader coverage than copyright. Copyright is all about protecting creative expression. But it does not cover design elements such as names, logo colors, typography and even the overall design. A trademark can offer protection for these logo design elements. In fact, it can protect the actual business logo itself.
On the other hand, trademarks are limited because it only deals with confusion with other similar business entities in a marketplace. The protection sphere of a copyright is more universal in scope. It protects against unlicensed copying which does not fall inside fair use.
A good case study is between Apple Music and Apple Computers. The two have co-existed together with their own respective trademarks. However, a scuffle happened when Apple Computers entered the music scene with Apple iTunes. The trademarks clashed. But still, both companies continued existing within their respective industries.
The bottom line: a trademark cannot protect against illegal copying. It can only be used to distinguish a product from another to prevent confusion.
The Value Of Copyright In Business Logos
Copyright offers more protection but it has a certain threshold. The intellectual property must have a requisite level of creativity. Copyright does not cover basic design elements such as color and design. This is why most simple logos do not avail of copyright protection. Only the artistic logos can have copyright protection, those which are more open to creative interpretation.
This can be confusing because many businesses do not know that there is a difference between copyright and trademark. A logo should reach a certain level of artistry to qualify for a copyright. There is no law that prohibits a business from claiming both copyright and trademark protections for their logo.
A business can use trademark protection to prevent competitors from using the same logo within the same industry. Copyright can then be used to prevent unwarranted copying of the logo by other parties. This gives flexibility for a business to protect the credibility of its brand.
Copyright is harder to defend and protect than trademark because artistry is actually subjective. What may be art for one may not appear as art for another. However, trademark has a narrow scope as it can only defend a logo against misleading of its customers. Copyright guards against unauthorized profiteering from illegally copied logos.
Dual Protections For A Business Logo
Even if trademark and copyright have their respective shortcomings in protecting a logo for a business, they can actually work hand in hand to complement each other. This provides a dual layer of protection for the logo.
In all situations, a business must be vigilant on how its business logo is used. If it falls in the wrong hands or misused by malicious parties, it can spell the end of a business. This is why trademark and copyright protection is of utmost importance.