Famous brands are often instantly recognizable because of their signature logos, symbols and slogans. They’ve created and trademarked these brand identifiers to protect their brand images. Businesses of all sizes may consider trademarking their brand indicators so competitors can’t use them and consumers won’t be confused.
We’ll explain what a trademark is, how to register and submit a trademark, and how to decide whether a copyright or trademark is the right way to protect your brand reputation and valuable intellectual property.
A trademark is a phrase or symbol that functions as a brand image or indicator. It includes words, names, images and symbols that identify a company or brand and distinguish it from other companies or brands.
The concept dates back to ancient times when skilled artisans working with metal or ceramic would imprint their distinct maker’s mark on a finished product. Even today, you can often distinguish between a high-quality piece of jewelry and a knockoff by the maker’s mark.
Registering your intellectual property with the government gives you a registered trademark, allowing legal enforcement for both physical products and digital assets.
A trademark has an associated “strength” that shows how defensible it is as your unique mark vs. how widely other entities can use it.
Consider the Apple logo — an apple with a bite taken out of it. It’s a strong trademark because other entities can’t use that specific symbol or even somewhat similar symbols defensibly. In fact, Apple has been involved in many trademark lawsuits preventing other companies from using logos that are simple graphic designs of a single fruit (such as the pear-shaped logo for a meal prep app called Prepear), arguing that they will confuse customers.
On the other hand, Apple trying to trademark the word “apple” would be weak; a bakery using apples does not violate Apple’s registered trademark if it describes its pies as apple pies. Nor is Big Apple Bagels in violation for using New York City’s nickname.
A strong trademark is entirely original. The brand name Xerox is an example. No entity was called Xerox before the company created the name and used it in its branding.
Strong trademarks are either completely unique words or images, or ones that have a unique use. Going back to the Apple example, the word “apple” is far from unique. However, its use for a technology company is unique, making it a strong trademark. If another company wanted to use the name Apple Technology, it would be sued for trademark infringement.
Register and defend your trademark to protect it.
While trademarks are words, names, images and symbols that identify your brand, copyrights protect unique creations. Unlike trademarks, you can’t copyright specific words (barring unique brand names like Xerox).
When choosing whether a copyright or trademark provides the best protection for your business, keep the following considerations in mind.
Registering a copyright isn’t required. However, not registering your copyright can be a critical intellectual property mistake that can harm your company.
If you pursue a registered trademark for your assets, take the following actions after you obtain a trademark application through the federal Trademark Electronic Application System (TEAS).
The owner may be the legal entity under which your business operates, or it may be an individual. The contact information should include the following:
When you submit your trademark, you must indicate one of these three mark formats:
The first two steps of the TEAS are quick to complete. Providing a picture and specimen may take longer.
In this section of the TEAS, detail the goods and services for which you’ll use your mark. Follow the U.S. Acceptable Identification of Goods and Services Manual as a guide, and use any relevant wording you see in the descriptions there. If necessary, you can detail your goods and services in your own words.
After you submit your TEAS form, you can’t change your trademark’s goods and services.
Choose one of the four bases below.
After you pay your filing fee, which can be as much as $400 per good or service class, the USPTO will refer your application to an attorney, who will review it within three months. You will be contacted if you must remedy any mistakes before your application reaches the USPTO’s weekly publication, the Trademark Official Gazette, where other trademark holders can counter your application if it appears similar to their marks.
If you successfully counter any challenges (or face no challenges), your trademark will be approved after the months to years it can take to adequately address a trademark lawyer’s concerns.
Here are answers to some of the most frequently asked trademark questions.
There are many guidelines for what constitutes a trademark, and the United States Patent and Trademark Office (USPTO) provides a series of educational videos to help you navigate trademark law.
In general, you can’t trademark your website’s graphic design, even if it’s unique. You also likely won’t be able to trademark website graphics and illustrations. If you create illustrated characters for use in your branding, you can copyright those characters, but you can’t trademark them.
You can trademark your brand logo and, if it’s sufficiently unique, your brand name. If you have individual products with their own logos, you can trademark those logos and names as well. Otherwise, you’re looking at copyright, not trademarks, to defend your creations.
There are two kinds of trademark indications: the small ™ and the ® mark (the letter R enclosed in a circle). You can only use the ® after your trademark is successfully registered with the USPTO. You can use the ™ symbol to indicate that your name or image is either an unregistered trademark or that your trademark is currently pending.
Once you submit the application, it takes about three to six months to hear back from the USPTO. Then there is a period of due diligence, during which the USPTO ensures that your item is eligible for a trademark. Altogether, the process usually takes between eight months to a year.
Jennifer Dublino contributed to this article.