How to Trademark a Brand: Everything You Need to KnowTrademark Law ResourcesHow To Register A Trademark
A trademark protects certain kinds of intellectual property. It can apply to any unique symbol, name, device, or word that identifies a company or product.8 min read
What is a Trademarked Brand?
A trademark protects certain kinds of intellectual property. It can apply to any unique symbol, name, device, or word that identifies a company or product. Trademark protection allows the company to protect its intellectual property from unauthorized use. Companies usually trademark their logo and name.
The first person or company to use a unique mark gets the trademark. This protection is limited to a small geographic area. For wider protection, the trademark has to be registered with the United States Patent and Trademark Office (USPTO.)
Trademarks also help companies build brand loyalty. By distinguishing one company from another, customers can choose who to buy goods from. This also protects consumers from companies misusing trademarked brands.
To get trademark protection, an application has to be filed and accepted by the USPTO. To be accepted, the trademark application has to meet some important requirements.
Why Is Trademarking Your Brand Important?
A trademark protects your brand. The brand is how customers recognize your business. This is the business's livelihood.
Without trademark protection, another company could use your brand. You can protect your brand and name from others with a trademark. You can also protect your business from infringing upon someone else's brand by using a trademark search.
It takes time to build a recognizable brand. A trademark helps to protect the brand while it is growing. Without that time and protection, the brand may never become profitable.
To get the broadest protection for your trademark, don't include a specific design. Also, if your business is registering a domain name as a trademark, don't include the web extension. The web extension is the ending of the web address, such as .com, .net, or .org. If you include the extension in the trademark, someone else could trademark the same domain with a different extension. By not including the web extension, you get more protection.
What Is the Difference Between a Trademark and a Brand?
The terms "brand" and "trademark" are often used interchangeably. However, there is a legal difference.
"Brand" can have a broad or narrow definition. A company chooses a brand to represent itself. A brand is made up of:
- Intellectual property assets
- Communication with the public, like commercials or advertising
- Names of products or services
A "trademark" is legal protection given to brand items or intellectual property. Brand items like the company name or logo can be trademarked. The trademark protects them from use by other companies and people.
For national protection, the item has to be registered with the USPTO. For statewide protection, it has to be registered with the secretary of state. To receive regional rights, it just has to be in use.
With federal registration, a trademark gets:
- Protection from unauthorized use
- The ability to claim damages in court
- Protection from the import of foreign goods that infringe on the trademark
An item can both be a brand and a trademark. For example, Chevrolet is a trademarked company name and a brand of car.
What Is the Difference Between a Trademark Logo and a Brand?
A company or brand name is just that — the name of the company. The logo is the design or image used to represent the company. A logo might include a specific font, color, or design to make it unique.
Most companies register both their name and logo. This helps protect the brand from use by other businesses.
If you can't afford to apply for two trademarks, the company name is more important. This is because the company name is likely to change over time.
In the United States, common law rights also apply. As soon as a company or person uses a name in business, they have common law rights to keep using it.
Common law rights are limited to the geographic area where the brand was first used. These rights offer little help if the company challenges someone else's use of the brand in court. Because of these limitations, it is important for businesses to register their brands as trademarks.
What Is the Difference Between Trademark and Copyright?
A copyright is a kind of federal legal protection for creators of original work. This includes movies, songs, books, poems, and works of art. A copyright grants the owner the right to use, display, sell, and reproduce the work. It lasts the lifetime of the creator or owner plus 70 years.
A trademark covers words, short phrases, and logos that identify a brand or business.
Copyrights protect works of authorship. Trademarks protect words, phrases, and symbols that identify the source of a product.
Something can be registered with both a copyright and a trademark. A logo may be copyrighted by the designer while the trademark belongs to the business owner.
You don't have to register to get a copyright or trademark. However, you get more protection when you register.
Why Should You Use an Attorney?
You don't have to hire an attorney to file your brand, logo, or company for a trademark. However, it can simplify the process.
A University of North Carolina School of Law study analyzed 25 years of USPTO trademark application data. The study found that applications that were completed with the help of an attorney were 50 percent more likely to be accepted.
An attorney may seem expensive, but the improved chances of acceptance could be worth it. If your application isn't accepted, you may have to apply again. This brings the overall cost in line with hiring an attorney. With a second application, you may also have to respond to a refusal. This costs extra time and money.
Whether an attorney will be helpful also depends on the kind of business. Something straightforward will result in a simpler application process. Something more complicated, like medical devices, technology, or pharmaceuticals, may benefit from the help of an attorney.
When Should You Apply for a Trademark?
There is no wrong time to apply for a trademark. Most businesses should apply as soon as possible to make sure no one else uses the trademark.
You have to send a drawing of the item with your application. To trademark a logo, be sure to send the version your company wants to use. If the logo changes after the application has been filed or accepted, you have to file a new one.
Common Law Trademark
You can claim ownership of a trademark as soon as you start selling products under that trademark. To indicate your claim, mark it with "™." Once your trademark is registered, you can indicate it with a circle "R" mark. It is illegal to use the circle "R" mark without having registered your trademark.
What Is the Trademark Application Process?
The trademark application process is simple, but can be time-consuming:
Do a trademark search
File an application
File an intent-to-use form
Pay the fees
This is an easily overlooked but important step. A trademark search looks to see if there are other trademarks like yours. If so, you have to redesign your mark.
Do a trademark search through the USPTO website. To complete this search, you'll use the Trademark Electronic Search System (TESS.)
This system and database help you confirm that no other company has registered a similar mark in the same category of goods or services. U.S. trademark protection is granted to the first entity to use that mark in that geographic area. This is not dependent upon registration.
On the other hand, if someone registers a mark before you do, you may lose the right to use it. Even if you used the mark first, if you didn't register it first, the trademark protection is given to the person who registers the trademark first. In such cses, a trademark lawyer can be a big help.
You can complete a trademark search yourself or hire a professional. Pay attention to details like looking for misspellings or slight variations.
A thorough trademark search helps protect you from a denial because a similar trademark is already in use.
Intent to Use
When you apply for a trademark, the USPTO expects that you are already using it. If not, you have to file an intent-to-use form.
This form tells the USPTO that your trademark is not in use, but will be soon. You have to start using your trademark in business within six months after the intent-to-use is accepted.
If you're not ready in six months, you can file an extension. For each extension, the USPTO looks for proof of why the trademark is not yet in use and charges a fee.
There are different levels of trademark registration and protection.
After searching for other similar trademarks and determining there are none, it's time to file a trademark application. The trademark application forms can be downloaded from the Trademark Electronic System and filed there for a small fee.
TM or SM
While waiting for your trademark application to be approved, mark your trademark with a ™ or SM mark. This is used to designate a pending trademark and a geographic ownership over that trademark.
A ™ mark is used for product-based trademark registrations. The SM applies to service-based trademark registrations. Once your trademark has received approval, you can mark it with a circle "R" mark or ®.
What Are the Fees To Trademark a Brand?
Businesses often hire attorneys to help with their trademark search and application. This raises the cost but makes the process more efficient. It also increases the chances that the application will be approved.
Most attorneys charge between $500 and $2,000 for help with a trademark application. If you're interested in applying for a trademark, find a lawyer to help you from UpCounsel.
Other trademark fees include an initial filing fee, late fees, and maintenance fees. Trademarks have to be renewed every so often, and there is a fee for each renewal.
Online trademark registration costs between $275 and $325. It requires:
How Long Does It Take To Apply?
Completing the trademark application is simple. You can do it online in about 90 minutes.
You should receive a response within six months.
What Should Not Be Trademarked?
Lots of things can be trademarked, like your business name and logo. However, there are also things that cannot be trademarked. If your business name is not the name you use when you communicate with customers, it probably cannot be trademarked. This is because the company name is not connected with your brand. That connection is important for a trademark.
Frequently Asked Questions
- What's the difference between a trademark and a brand?
Companies choose brands to represent them when communicating with customers. A trademark is a kind of legal protection for those brands.
- What can be trademarked?
- Most businesses trademark their logo and company name.
- If you are thinking about applying for a trademark, talk to one of the attorneys on UpCounsel for help.
- For regional protection, you don't have to register. Whoever uses the mark first receives the trademark. This level gives very little protection to the trademark holder.
- State registration is the least expensive way to register your trademark. The cost varies by state. It usually ranges from $50 to $100. State registration only protects your trademark from unauthorized use within the state. There is no inter-state protection.
- Federal registration is the most expensive but offers the most protection. Register your trademark at the federal level through the USPTO. A federal trademark is recognized across the country. Other benefits include:
- Protection against unauthorized use
- Ability to claim damages in court
- Ability to stop the import of foreign goods that infringe on the trademark
- Category of goods or services for which the mark will be used
- Date of first use of the mark
- Whether or not your mark has a design component