Understanding basic facts about trademarks will guide you throughout this seemingly complex process.  

Although a trademark may seem complicated, once you understand the basics, the process of obtaining one becomes a lot less intimidating. In order to make the best decision for your business, here are some basic facts about trademarks that will help you protect your business and intellectual property. 

Basic Facts About Trademarks 

In 2015, there were over half a million trademark filings in the United States, which has steadily grown since 2011. Here is an explanation of what trademarks are and what you should know about their influence on success.

  • A trademark can be a phrase, word, symbol, or design; it can also be any combination of these. A trademark helps to distinguish the source of a product or service, allowing companies to stand out from the competition. 
  • A service mark is also a legally registered designation or name. It is the same as a trademark; however, a service mark represents a service instead of a product. While a trademark will appear on a product's packaging, a service mark will be displayed during advertising. 
  • Trademarks differ from a copyright, which is an original piece of literary work or art. The same is true for a patent, which protects an invention. Applications for all of these processes are handled by the United States Patent and Trademark Office (USPTO).
  • A registered trademark is not limited to a name, tagline, or logo; it can also protect patterns, symbols, expression, catchphrases, and even jingles.

Although trademarks may seem like a modern business practice, this level of identification dates back to the Roman Empire.

  • One of the first recorded uses of a trademark was during the Roman Empire. After making their unique style of sword, blacksmiths would mark the finished product with a symbol that represented the maker of that sword. 
  • The first trademark legislation passed in the Parliament of England in 1266. King Henry III required bakers to use their own distinct trademark to differentiate the bread they sold. 

Establishing Trademark Rights 

Understanding the process of applying and obtaining a trademark can help you take your business to the next level. Here is a simplified outline of the process itself.

  • In order to obtain a trademark, Federal registration is not required, but it is recommended. Although you are not required to register your mark in order to use it, it is recommended that you do so. This step ensures that your trademark is secure and associated with your business. You will then be entitled to use the trademark nationwide. 
  • There are two types of rights in relation to trademarks. The first is a right to register and the second is a right to use. Typically, one's right to use a trademark begins when one is the first party to use that mark in commerce or when filing an application.
  • It is imperative to note that the court cannot provide trademark advice. Instead, the parties involved must obtain a private attorney. Since trademarks can last indefinitely, it is imperative that the applicant understands the renewal terms. Within the 10-year renewal terms, an affidavit must be filed between the fifth and sixth year. This can be discussed with your attorney. 

Types of Applications for Federal Registration 

When applying for a federal trademark, this can be achieved in three ways:

  • The first approach is when the applicant has already used the trademark in commerce. This is known as a 'use' application. 
  • The second is when the applicant has not yet used the mark but intends to. This is an 'intent to use' application. 
  • The last option is to register outside of the United States based on another country's registration process. In order to obtain advice, it is recommended that these parties seek an attorney

When it comes to who may file an application, here are the associated basic facts about trademarks:

  • The application must be filed by the party who wishes to own the mark, whether it's a corporation, partnership, or individual. This can be done with the assistance of an attorney. 
  • Once a mark is obtained, that party is responsible for the quality of the goods and services they offer.

If you need help with business trademarks, you can post your legal need on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies such as Google, Menlo Ventures, and Airbnb.