Top 10 Questions During the Trademark Process
Understanding the Trademark Process
Although most artists, businesses, and individuals grasp the importance of registering trademarks, not everyone rushes to get things done. Many have unanswered questions that can cause costly delays in due diligence. Hopefully, answering the top 10 questions during the trademark process can help you speed up your application.
1. What Constitutes a Trademark?
Even the very idea of having a trademark can be confusing. So, let’s start with a definition.
A trademark is a name, slogan, or logo that represents your brand. It clearly distinguishes your product or service in a commercial setting. Getting a trademark can help protect your brand from other parties trying to copy you.
Trademark law has evolved over the years. For a while, you could only register trademarks for goods. These days you can also protect services. However, your product or service must be sold commercially to qualify for trademark protection.
There are plenty of things you can’t trademark, like short motifs, government symbols, or full songs. If you want to protect audio intellectual property, you’ll want to apply for a copyright instead.
2. Is a Trade Name Different Than a Trademark?
Trademarks are used to identify services, products, or brands and give certain legal rights to their owners. A trade name is nothing more than a pseudonym someone can use to conduct business without using their registered legal name.
A registered trade name also doesn’t provide substantial information on whether the name might be available and free to use. To identify and gain legal rights over products and services, you should first clear the name to ensure its availability.
The United States Patent and Trademark Office has a registered trademark database where you can search for in-use and registered names, or you can use Trademark Filing Firm’s free trademark search tool. Once you’re ready, you can register your trademark with the U.S. Patent and Trademark Office (USPTO.)
3. Do Different Terms Offer More Protection Than Others?
Another issue people run into concerns terms. Wording always matters, especially when dealing with the spectrum of distinctiveness.
Distinctiveness describes the protection or strength of various trademarks under U.S. trademark law. You want distinctive wording for a successful trademark registration.
Levels of Distinctiveness:
- Generic
- Descriptive
- Suggestive
- Arbitrary
- Fanciful
Generic names can’t be trademarked, whereas fanciful marks, like Kodak or Pepsi, offer the broadest protection. The more distinctive your mark, the stronger your legal rights.
4. Do You Have to Register Similar Trademarks to Prevent Third-Party Use?
Registering multiple marks to protect variations on the original desired trademark may seem like a great idea. And while it is possible to file multiple trademarks to cover variations, it can be both time-consuming and financially draining.
All you have to do to prevent third-party use is to demonstrate the use of a mark or declare the intent to use it, then provide proof of use before registration.
5. Should You Register Trademarks With the USPTO?
You can technically gain some mark rights in the U.S. based solely on frequency of use. Sometimes those rights can be sufficient to challenge a trademark infringement.
Of course, just because this isn’t a legal requirement doesn’t mean skipping the process is advisable. Registration comes with powerful advantages and legally recognized exclusive rights to use a trademark.
6. Is a Mark Free to Use if It Isn’t Registered in the USPTO Database?
On paper, it might seem that marks not in the USPTO database are fair game. But remember that registering trademarks isn’t a legal requirement. Unregistered marks could still be used by other business entities or individuals.
It’s best to do your due diligence for trademark clearance by enlisting the help of an expert in this field.
7. Is Registering a Name Instead of the Logo Enough?
If you want to register your name, you can do it in a standard character format. The wording registration is an excellent choice, thanks to the broad protection it can offer.
That said, many trademark holders register both the logo and wording if they have room in their budget.
8. What Symbols Are You Allowed to Use and When?
When dealing with trademarks, you have three universally recognized distinctive symbols:
- ® (Registered)
- ™ (Trademark)
- SM (Service Mark)
The ® symbol can only be used once your mark is fully registered with the USPTO. The ™ and SM symbols indicate claims on trademarks and service marks, respectively, and do not require registration.
9. Should You Register Your Company’s Legal Business Name?
You can trademark a registered business name. If you choose to include terms like “company,” “LLC,” or “Corp” in the mark, it needs to match the actual structure of the company. A business name is only not registrable if it does not provide a service.
10. What Are International Classes, and Why Do They Matter?
Most countries categorize registered marks into international classes, grouping similar services for easier identification. It also helps when searching for marks in different international jurisdictions.
But this doesn’t have an impact on claims. Infringement is still possible even if two same or similar marks are found under different international classes. Proper due diligence and trademark clearance are still necessary.
Get Help With Your First Registered Trademark
Anyone can file their own trademark paperwork. But if it’s your first time, you might be worried about making mistakes while trying to register your mark.
Trademark Filing Firm’s trademark registration services can help you identify free-to-use brand trademarks, draft the necessary paperwork, and apply for registration with the USPTO. It’s a one-stop shop for branding trademark issues to help you protect your brand and minimize your risk of being infringed upon by third parties.
Disclaimer
Trademark Filing Firm is not a law firm, and none of the information on this website constitutes or is intended to convey legal advice. General information about the law is not the same as advice about the application of the law in a particular factual or legal situation. Individual facts and circumstances, as well as legal principles, including but not limited to the ones referenced on this website, can affect the outcome of any given situation.
Trademark Filing Firm cannot and does not guarantee that an application will be approved by the USPTO, that a mark will be protected from infringement under common US trademark law, or that any ensuing litigation or dispute will lead to a favorable outcome. If you want or have an interest in obtaining legal advice with respect to a specific situation or set of circumstances, you should consult with the lawyer of your choice.
