Trademarks – whether or not they are legally registered – are the core components of your brand. A trademark is a type of intellectual property consisting of a recognizable sign, design, or expression that identifies products or services of a particular source from those of others, although trademarks used to identify services are usually called service marks.
It may seem obvious, but it is important to choose the name of your business, product, or service carefully. You can start by searching the U.S. Patent and Trademark Office’s database at www.uspto.gov before filing your application to determine whether anyone already claims trademark rights in a particular mark through a federal registration. Before you get too attached to a name or invest time and money into it, also consider having an attorney conduct a preliminary clearance search. This will ensure that you do not infringe upon another company’s mark, which could result in a lawsuit or force you to go through a costly rebranding process.
You also need to make sure that the name you choose is entitled to trademark protection. For example, you cannot trademark a generic term such as “widget” or “software,” and unless you are famous you probably cannot trademark your name. Words, designs, slogans, symbols, logos, distinctive colors and shapes, or any combination of these can be trademarked. After you have determined your desired mark is not already trademarked and is entitled to trademark protection, you can file a trademark application.
Although you do not have to use a trademark before filing for an application, you do have demonstrate “use in commerce” to the trademark office. That means you are using the mark for business purposes in a way that can be regulated, not just to reserve or claim rights on the mark. Use of the mark on packaging or in marketing, offline or online, for the purpose of making a sale qualifies as “use in commerce.” A trademark also gives you the legal right to license your mark to others without voiding any claims to ownership.
Keep in mind that rights to a trademark are acquired through use of the trademark, not just by registration of the trademark. For example, if you plan to spend months or even years developing a strategic plan before you actually use your mark, you can submit an Intent-to-Use Trademark application, which reserves the mark from the filing date. Although neither federal nor state registration are required, there are benefits to both.
For legal advice on the trademark process, please consider contacting Whitehouse & Cooper, attorneys who specializes in intellectual property.
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