How Trademark Law Can Help Your Small Business
What is a trademark?
A trademark is anything that is used to identify a business and its goods and distinguish it from another business. A trademark can be a name, a logo, or a symbol. Similarly, a service mark is used to identify a service provider; for example: a daycare center, an insurance agent, or a restaurant.
How is a trademark established?
A business can establish trademark rights by either using the mark in commerce or filing an application to register the mark with the USPTO and than using the mark in commerce. Trademark law does not require the registration of the trademark with the USPTO (United States Patent and Trademark Office) to have rights in a trademark. However, registering the trademark puts the public on notice of your claim to the mark. Simply using the mark in commerce may establish a common law right in the trademark.
How will registering the trademark help my small business?
By registering the trademark with the USPTO in accordance with trademark law, certain benefits are secured. The registration is evidence of ownership. If another business uses the mark the owner may demand that unauthorized use be terminated. It also allows the owner to sue any infringers in federal court. Registering the mark allows you to use the ® or ™ symbols. Most importantly, having the trademark allows the business to grow and develop a brand without fear of dilution.
What is a trademark search and do I need one?
Trademark law does not require that a search be conducted before filing an application to register a trademark with the USPTO. However, it is a good idea and highly recommended. A comprehensive search will examine federal and state registrations, as well as any common law trademarks. It should also include a phonetic search. Additionally, even if you do not have plans to register the mark, conducting this search prior to naming your business is a good idea as well. This may save you from inadvertently using someone else’s mark and facing a lawsuit.
Can my proposed trademark be denied?
The USPTO may refuse to register a trademark for a number of reasons. Immoral, deceptive or scandalous marks will not be registered. Marks that are vague and merely descriptive will not be registered. A mark that may lead to confusing with an already registered mark will not be registered. The name of a location or a flag may not be registered.
How long does the registration process take?
The entire process can take up to one year. After the application is submitted an USPTO attorney will review it. The attorney will conduct a search to determine that the proposed mark will not cause confusion with an already existing mark. The examining attorney may send a request for clarification or further information, or may approve the mark. Once approved the USPTO will publish the trademark in the Official Gazette and allow other parties to object to the registration. If the trademark clears all hurdles a Certificate of Registration or Notice of Allowance will be issued.
This post is for informational purposes only. It is not intended to be, nor should it be construed as, legal advice. Always consult an attorney, licensed in your state, before taking legal action.