When you work hard to develop a company, you want to protect who you are as a brand. Although the term 'brand' and 'trademark' are often used interchangeably, it is important to be aware of how they are legally different from one another. 

What is the Difference Between a Brand and a Trademark?

Both brand names and trademarks are critical assets to a business. 

Put simply:

  • A 'brand' name is one that is given to a product or service, based on a specific source. It can also represent the name of a company. Your brand is what sets you apart. 
  • A 'trademark' is a legal term that represents the source of a product or service. This can include any name, signature, brand, packaging, sound, movement, and more. 

Although they are different from one another, a brand can become a trademark. As brands develop, they are able to evoke emotions and visual imagery in the minds of customers. Brands can be extremely valuable and ever represent a niche. For example, when you think of tissues, you think of Kleenex. This is how powerful brands can be, prompting consumers to think of specific brand names instead of the generic product or service. This is achieved when a brand has perceived value. 

Based on the importance of a brand's identity, many companies seek trademarks to protect the brand itself. Nike is a well-known brand, but they have also registered trademarks, including the Nike 'Swoosh.' By registering a trademark, companies benefit from legal protection. They can also pursue legal action when their brand is used without permission. 

On the other hand, when a brand is not registered, it can be used by others without the original brand's consent. This would then be handled at the state or municipal level. A trademark is applied for and obtained at the United States Patent and Trademark Office. It is recommended that an applicant retain the services of an intellectual lawyer when applying for a trademark. 

What to Do Before Registering For a Trademark 

Before you seek a trademark, be mindful of the following steps:

  • Step One: Search for the availability of the trademark. If another party has registered that mark or something similar, your request will likely be denied. 
  • Step Two: Ensure that your mark is distinctive — it should clearly define your product or service in comparison to the competition. 
  • Step Three: Make sure that your proposed trademark is not overly descriptive; this could cause it to be rejected by the trademark office. Also, be aware of restricted words or symbols, to include those that are blasphemous or offensive. 

Understanding Brands and Trademark Laws

Like brands, trademarks can strengthen with time. This is dependent on how familiar consumers are with a product. If there is an issue with infringement, the court will use the following process:

  • It will first determine the strength of the trademark, and then compare the similarity of the two marks.
  • It will then consider the evidence with regard to consumer confusion. This will include how the businesses are related to one another, focusing on overlapping distribution and communication.

This is why it is recommended that trademarks be registered at the federal level. This will provide additional protection and when it comes to protecting brands and trademarks, obtaining an attorney is strongly recommended

Protecting the Brand with Trademarks

When building a business, long-term success is often dependent on a strong brand. This is why trademarks are so essential to small businesses, yet they are often overlooked. A trademark is what protects your brand, so that you can remain a key player in your industry, achieving sustained growth. 

Your logo, taglines, name, and even your packaging are all business assets. However, without a trademark, they will not be legally protected. 

As a general rule of thumb, a trademark typically needs to be used when advertising to consumers. This is how they connect to the brand itself. When consumers associate a specific business name with that brand, this simplifies the trademarking process. Ask yourself, is my name, logo, or tagline unique? The more a company differentiates itself from other companies in the industry, the easier it will be to develop and file a trademark. 

If you need help with business trademarks, you can post your legal need on UpCounsel' 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, Stripe, and Twilio.