1) What is a trademark?
A trademark is a word, phrase, symbol, and/or design that identifies the source of goods or services being offered to consumers. The underlying goal of trademark law is to help people associate goods or services that they use with a specific entity or person. When services are being offered instead of goods, this type of intellectual property is also known as a service mark.
A trademark is something that helps a business protect its branding through things such logos or business names when that branding is associated with specific goods or services.
2) What is the difference between trademarks, patents, and copyrights?
The best way to explain the difference between these types of intellectual property is by way of example. Imagine that you come up with a brilliant product that you think will be highly successful in your business. If that product happens to be new, novel, and non-obvious, you may patent that product to protect the invention itself. A patent will prevent other people and entities from making, using, or selling the product itself. If you decide to take photos or write an article to advertise your new amazing product you can copyright the photos and the article so people do not “copy” your creative expression.
However, neither copyrights nor patents will properly protect the symbol and name that you stamp on your amazing product. This is where trademarks come into play, you can protect the symbol or name on your product with a trademark so customers know it is coming from your business.
3) Why are trademarks important?
As a business, you want to make sure that you protect your reputation, and one way of doing this is to obtain trademark protection. When you obtain a trademark for your business’s branding, you have the ability to prevent others from entering the market with similar branding for a similar service.
The reason this is important to your reputation is because you do not want people confusing another business’s products or services as your own. This is especially true when the products being sold by that competitor are not up to your own quality standards. When this happens, consumers may associate poor products or services with your company, which will eventually result in decreasing business opportunities.
4) Why should you always conduct a trademark search before adopting your branding?
The last thing you want is to come up with an amazing product, get it all the way to market, and then suddenly be sued for using the wrong name or logo on the product. This could be devastating for a business that is trying to take a product to market. You want to make sure you work with someone to investigate whether the name or logo you want to use is not infringing someone else’s trademark rights. Therefore, it is always a good idea to conduct a search before going to market with a logo or name.
5) How do you file for a trademark?
There are several types of trademark applications, the most common of which are claiming use of a mark in commerce and claiming a bona fide intention to use a mark in commerce. When claiming a use of a mark in commerce, this means that you have already launched your business and are actually already selling the product in interstate commerce at the time you file the application. When you file based on a bona fide intention to use a mark in commerce, it means that you have not started selling your product with the branding yet, however, you intend on doing so in the near future.
To file for the trademark you need to know what “class” of goods or services the trademark covers. This is because, in order to actually obtain a trademark registration you will have to show the United States Patent and Trademark Office (“USPTO”) that you are using the product in interstate commerce. This is done by submitting a “specimen” demonstrating the use of the mark on your product along with a date that the mark was first used in commerce.
These requirements are also the same when you file under an intention to use application. Even though you can file the application early, you will not be eligible for protection until you have actually used the mark in interstate commerce and demonstrated your use by submitting a specimen.
– By Travers Morgan, Esq. of Cislo & Thomas LLP