Key Takeaways

  • Trademarks protect brand identifiers like names, logos, and slogans.
  • Using the ™, SM, or ® symbol depends on the registration status of your trademark.
  • Unregistered trademarks offer limited rights compared to federally registered marks.
  • Conducting a trademark search is essential before using a business or product name.
  • Registration gives legal advantages like stronger enforcement and increased damages in lawsuits.
  • Knowing what to ask a trademark attorney can save time and reduce risks.
  • Understanding what makes a good trademark can prevent denial or infringement issues.
  • Hiring the right attorney with relevant experience is critical to trademark success.

Reading a few trademark questions and answers is the best way to decide if registering a trademark is the most suitable way to protect your intellectual property (IP). Although trademarks are extremely useful, they are not suitable for every type of IP.

What is a Trademark?

Trademarks can come in several different forms and can be a design, a phrase, a symbol, or even a word. The important thing to remember is that trademarks are used to identify the services or products of the company that owns the trademark.

There are several items for which a trademark registration may be issued:

  • Logos
  • Slogans
  • Product names
  • Company names

In some cases, the packaging or color of a product can also be protected by a trademark. Trademarks should be very memorable. When a potential customer sees your trademark, the goal is for them to immediately associate with your business.

For the fullest protections possible, trademarks should be registered with the United States Patent and Trademark Office (USPTO). Formally registering a trademark provides more protection than common law and unregistered trademarks. Once a trademark has been registered, businesses can stop people from using their mark without authorization.

To keep USPTO trademark protections in place, you must continually use your mark. Trademarks, unlike other types of intellectual property protections, have no expiration. As long as you do not abandon your trademark and you renew your mark when required, you will be able to enforce your rights. Filing affidavits of Excusable Non-Use or Continued Use will renew your trademark rights.

Who Can Own a Trademark?

Both individuals and business entities (such as LLCs or corporations) can own trademarks. The owner must be the party that controls the nature and quality of the goods or services provided. In many cases, it's beneficial for the business entity rather than the individual to own the trademark, especially to ensure continuity, protect against liability, and simplify licensing or sales.

What Symbols are Used for Trademarks?

There are different notations that can be used to indicate your trademarked rights. Before you register your trademark, you can use the ™ notation. For a service mark, you would use “SM.” Once you have completed the USPTO registration process and your trademark has been approved, you can use the ® symbol. This symbol shows that your trademark is now registered and has full USPTO protections.

If you want to be able to fully protect your trademark, including protecting it against infringement, you should be sure to take the time to register your mark.

You should make it a point to keep track of how your trademark is being used. This will help you to identify misuse so that you can enforce your rights in a timely manner. It can also be a good idea to register your trademark internationally if you plan to use your mark in other countries.

What's the Difference Between Registered and Unregistered Trademarks?

While registering your trademark with the USPTO will provide you with advanced protections, registration is not required. If you have created a company logo and wish to start using it, you can simply indicate your rights with the ™ symbol. Using your trademark in concert with this symbol will give you common law trademark rights.

Common law rights will help you to secure your trademark, but they do not offer the robust protections you can receive with USPTO registration. Rights to a trademark depend on first use. For first use to be established, however, your mark must actually be eligible. This means that your mark cannot have already been used by someone else, and you need to be using your mark for commercial purposes.

Can I Use a Name for a Company, Product, or Service?

One of the most important parts of incorporating or registering a business is making sure that the name you have chosen for your business is available for use. One of the primary reasons that a corporation or LLC registration is denied is that there is a business name conflict. To make sure your desired business name is available at the federal level, you should be sure to perform a trademark search.

You should also be aware that it is still possible to infringe on someone else's trademark even if the mark has not been registered with the USPTO. In addition to a federal trademark search, you should search trademark databases at the local and state levels so that you can be sure you're not at risk for infringement.

What Makes a Good Trademark?

Choosing a trademark that’s eligible for registration is key. A strong trademark is:

  • Distinctive – Avoid generic or descriptive terms.
  • Not confusingly similar to existing marks.
  • Used in commerce – The USPTO requires evidence of commercial use.
  • Flexible for expansion – Choose a mark that won’t limit future product or geographic growth.

Avoid names that are geographically descriptive, surnames, or terms common in your industry. These face a high likelihood of rejection.

What are the Benefits of Trademark Registration?

Registering your trademark can provide you with several important benefits:

  • Increasing the available damages in an infringement lawsuit.
  • Providing you the ability to use the ® symbol.
  • Making it easier for you to acquire domain names.
  • Offering stronger protections than common law rights.

How to Choose the Right Trademark Attorney

When selecting a trademark attorney, look for:

  • Relevant experience – Ask how many trademark applications they’ve filed and how many were successful.
  • USPTO familiarity – Attorneys experienced with USPTO procedures can avoid delays and refusals.
  • Clear pricing – Understand the cost structure: flat fees, hourly rates, or additional government fees.
  • Communication – Choose someone who can clearly explain legal terms and processes.

Ask for references or reviews when possible to evaluate their track record. A qualified attorney can streamline the trademark process, saving time and reducing risk.

Common Trademark Questions to Ask an Attorney

If you’re considering trademark registration, speaking with a trademark attorney is a wise move. Here are several essential trademark questions to ask during your consultation:

  • Do I need to conduct a trademark search before filing?
    A thorough search helps avoid conflicts with existing marks and increases your chance of approval.
  • Is my trademark distinctive enough?
    Generic or merely descriptive marks are hard to protect. Ask if your mark is strong under USPTO guidelines.
  • Should I file as an individual or a business entity?
    The legal owner of the mark affects your rights and tax implications. Discuss which is best for your situation.
  • Which international protections should I consider?
    If you plan to operate abroad, ask about international trademark filings under the Madrid Protocol.
  • What are the risks of not registering my trademark?
    Unregistered marks only offer limited geographic protection and are harder to enforce in court.

These trademark questions not only clarify the process but also help you avoid legal pitfalls and costly mistakes.

Frequently Asked Questions

  1. Do I need to hire an attorney to file a trademark?
    No, but working with a trademark attorney can significantly improve your application’s success and help avoid common pitfalls.
  2. How long does it take to register a trademark?
    It typically takes 8–12 months if no objections are raised, but can take longer if the USPTO issues an office action or the mark is opposed.
  3. What if someone is using a similar name without registering it?
    They may still have common law rights based on first use in commerce. A trademark attorney can help assess the situation.
  4. Can I trademark a slogan or tagline?
    Yes, if it is distinctive and used to identify and distinguish your goods or services.
  5. What happens if my trademark application is denied?
    You can respond to a USPTO office action, modify the application, or appeal. An attorney can guide you through the best next steps.

If you need help with trademark questions and answers, you can post your legal needs 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 like Google, Menlo Ventures, and Airbnb.