What is a Trademark vs. a Brand?

While your brand represents your reputation and business in the public eye, a trademark legally protects those aspects of your brand that are unique and specific to your company. It is a mistake to use the terms "trademark" and "brand" interchangeably, as they have very important differences. When considering the two, remember the "all-but-not-all" rule. All trademarks are brands, while not all brands are trademarks.

In its simplest form, your brand is your image. It is what the public sees and thinks about your company. A trademark is a specific aspect of your brand which has legal protection as it is a unique identifier for you.

Trademarks can be specific words or phrases, such as slogans, which are a vital part of your company's brand. They can be trade dress, or a specific combination of features used to identify you, such as logos, specific combinations of colors, shapes and design layout, or any other aspect of your brand that you feel the need to protect as part of who you are, unique from anyone else.

Why Is Trademark vs. Brand Important?

While a brand is a corporate image that builds over time and is a reputation of quality in the eyes of customers, a trademark is legal protection of the brand, granted by the Trademark and Patent Office.

Whereas a brand helps to identify the company and its products or services, the trademark helps to prevent competitors from stealing the brand image or creating substantially similar identities to create marketplace confusion. Brands consist of a number of elements. These include:

  • Identity
  • Image
  • Personality
  • Character
  • Culture
  • Essence
  • Reputation

These elements, taken together, determine the value of a brand in the marketplace. If a brand is not registered or trademarked, other people can use it without fear of penalty. If the brand is registered, severe penalties attach to its unauthorized use.

The brand name is simply how the business chooses to be identified. Trademarks, also called service marks, are marks that carry legal weight in terms of representing a brand, often a business and its goods and services. While the brand is what the public uses to identify the company, the trademark protects specific aspects of that brand. These can include, but are not limited to:

  • The brand name
  • Unique labeling
  • Signatures
  • Words
  • Symbols
  • Packaging
  • Color schemes
  • Sounds or sensory experiences
  • Movements

The key is that the protected devices must be uniquely identified with the business brand. This is why trademarks are most commonly associated with brand names.

The History of Trademarks vs. Brands

Historically, the word "brand" dates back to the days when shepherds placed marks on their sheep to identify them from the property of other shepherds. This was done by placing a hot iron against the sheep to burn a unique mark into them. The term "brandr," or "to burn," became "brand."

When the practice became widespread, a rancher named Samuel Maverick determined that there was no need to place brands on his sheep because everyone else did. Thus, the term "maverick" came into the lexicon.

Decades later, after the Industrial Revolution, improved manufacturing enabled goods to be sold all over the world, and manufacturers wanted their goods to be identified against competitors, which led to brand names. You hear popular brand names in your daily life, like Pepsi, Apple, Android, Target and more.

These names have power in the marketplace and it's necessary to grant legal protections to avoid others usurping the names or creating marketplace confusion. That legal protection is the trademark. A trademark grants exclusive rights over the use of a brand identifier to the owner, as well as the power to bar others from creating confusion or unfair competition through lawsuits.

Reasons to Consider Not Using a Trademark vs. Brand

There are two different kinds of trademarks, basic and registered. The moment you begin using anything to uniquely represent your brand, you can trademark it by placing the ™ placeholder after the item. This provides you some degree of legal protection should someone else try to steal, misuse or confuse your brand.

Trademark protection, on some level, is automatic the moment something becomes associated with your brand, be it the name itself, a logo, your patterns or anything else. You don't technically have to register your trademark to receive protection. For many, this is reason enough to consider not using a trademark to protect their brand.

Reasons to Consider Using a Trademark vs. Brand

A trademark or service mark (the latter being used to represent services as opposed to goods) are vital protections against the misuse of your brand. Marks can be used to stop others not only from using your brand but from creating their own that is so similar as to confuse patrons and trick them into thinking they are buying a product associated with you. This is called "brand confusion."

While trademark protection is automatic, should you need to sue someone to protect your trademark, the burden of proof will fall upon you to demonstrate that the mark was yours first. If you have registered the trademark with the USPTO (U.S. Patent and Trademark Office) you may designate this by the use of the ® symbol after the trademarked device.

A trademark protects your brand identity, the symbols, logos, terms, catch phrases, names and other imagery that represent your goods and services. A copyright is legal protection over works of authorship. These are creative works like books, songs, poetry, movies, photographs, paintings, choreography, web content, and other art.

Trademarks only protect your intellectual property to a certain level. Having rights to a trademark stops another business from using a mark similar to yours. This is meant prevent customer confusion. It does not prevent another business from making the same products as you. It also does not prevent them from selling the same services or goods while using a different mark. If you use your trademark between states or in other countries, you can register it with the USPTO.

Copyright protection issues from the 1976 Copyright Act. This allows the copyright owner exclusive right to their creations. Other people cannot create derivative works, reuse, distribute, or reproduce the protected property in any way without permission from the copyright holder.

There are limits to copyright protection. First, it protects only the specific expression of the subject matter, not the ideas behind it. Second, it does not protect against works that are clear parodies of the copyrighted work. Third, there is a legal defense against copyright called "Fair Use," which allows small clips of copyrighted works to be used for reference, review, scholarship or the like. Finally, copyright does not protect single phrases, trade names or slogans.

For this reason, many copyright owners choose to trademark important aspects of their work to prevent abuse. Consider the Lord of the Rings. While the ideas presented cannot themselves be copyrighted, the exact words used to tell the story, and the specific events in the story are covered. In addition, to protect against misuse, many of the places and characters in the work are also trademarked.

Like a trademark, copyright protection is automatic and kicks in the moment you create a work of authorship. Also like a trademark, copyright protection can be registered with the government to provide additional, more solid protection.

The process of registration is entirely different, however. Copyright is done through the Copyright Office and has a very small registration fee. It is a rather quick process. Trademark registration through the USPTO is more intensive and expensive, requires much more scrutiny, and tends to be more adversarial.

Finally, copyright protections allow the holder to demand royalty payments and licensing for the use of the property. This concept doesn't exist for a trademark. In addition, there are very different definitions and standards for determining infringement under copyright law vs. trademark law.

What Is the Difference between Trademark vs. Patent?

A patent is a means by which the government grants legal protection to the inventor of a device, process or technology. It provides a sort of limited monopoly over the invention's use, allowing the patent holder to ban others from producing, using, selling, offering to sell, or importing the invention in any way.

To get a patent, the device must both be novel (completely original and unique) and non-obvious in the way it approaches solving a problem. This means that someone with basic skill in the art in question wouldn't have thought of the same conclusion as a logical next step.

As with a copyright, there are reasons to use trademarks in conjunction with patents. If a device has a unique name that identifies the invention and associates it directly with your business, you might trademark the name as well as patenting the invention to stop others from creating "knock off" products that are inferior but confuse the consumer into thinking you produced them.

When it comes to things like articles of clothing, there is the potential for all three of these to be used.

  1. Should you create a unique piece of clothing that is novel and nonobvious in the way it approaches solving a problem, that clothing design can be patented.
  2. If you create a design or artwork that you display as decoration on the clothing, that is protected by copyright, but only so far as the actual artistic presentation is concerned.
  3. If that design or artwork also comprises a logo for your business, you may also want to trademark it.

Remember these three things:

  • A copyright grants exclusive ownership and usage rights over a work of authorship or creativity.
  • A patent grants exclusive ownership and usage rights over an invention.
  • A trademark protects the identifying marks of a business.

It's possible you may need a trademark and copyright protections for the same business. If for instance, if you come up with a new slogan for a new product, and the slogan is used in your marketing materials, you would need both a copyright and a trademark. However, they are used for different purpose.

The text and images of your advertising documents will be protected by copyright, but your slogan will not be. Your slogan may be protected by a trademark, but not the rest of the ad. Fully protecting your intellectual property, particularly in regards to advertisements, requires both a trademark and copyrights.

You may also need to protect an image. Choosing to protect an image with a trademark or copyright law depends on how you intend to use it and for how long. Images meant to identify services or products need protections. Images used for a short period, such as a limited ad campaign, usually don't need protection.

Do I Need to Register My Business Name?

A business name is also called a trade name. This is the official name a company or sole proprietor goes by when conducting business. Legally, you don't have to register a business name to conduct business.

However, if you don't, you can run into problems. First, other people can steal the name and use it for themselves. Second, any business you do under that name is considered a DBA, or "Doing Business As." This means that your personal assets are at stake for all business you conduct. You face both tax and personal legal liability related to your business activities.

This means you'll be paying self-employment tax on all business you do while you are operating as a DBA. These tax liabilities are higher. Secondly, should you get into trouble, either from failure to pay taxes or by someone suing you, your personal assets are at stake. You could lose your car, your home, or any other property you own.

Registering your business with the state as a corporation or an LLC (limited liability corporation) gives you some tax relief and protects your personal assets against problems associated with your business practices.

Where you live is the biggest factor in how unique your business names must be. Some states allow businesses to have similar names—Mandi's Florist vs. Mandy's Flowers, for examples. In other states, this is not acceptable. It's always a better idea to make your business name as unique as possible. This will help you avoid an application rejection.

Business Registration vs. Trademark

It's important, however, to protect the unauthorized use of your business name through a trademark. When you register as an LLC or corporation, no other business in your state can operate using that name as a corporation or LLC.

However, sole proprietors or partnerships could still use your name. In addition, there's little to stop businesses in other states from using it as well. Registering a trademark on your name makes it the property of you and your business. No one else can use it for any reason that would create confusion with your business operations.

Examples: What Could Happen When You Do Use a Trademark vs. Brand?

Consider, for example, that Joe decides to open an Italian restaurant—Joe's Amazing Pasta. He registers his business with the state as an LLC and then registers his brand name as a trademark after determining that no one else is using it. His business becomes very popular.

A year later, someone two blocks over opens a business called Joe's Outstanding Italian Eatery, which they run as a partnership. While the name is not identical, Joe could, based on his ownership of the trademark, file a lawsuit against Joe's Outstanding Italian Eatery. The new restaurant could be forced to change the name or cease operations based on the fact that their name is confusing patrons into thinking it's a franchise under the same owners.

Examples: What Could Happen When You Don't Use a Trademark vs. Brand?

Joe, as above, decides to open a restaurant. He files his business name with the state but doesn't bother to trademark it. A year later, after he becomes popular, the partnership a few blocks over opens Joe's Outstanding Italian Eatery. They trademark their name.

Now Joe has problems. Since he didn't trademark his name, there's nothing to stop the new partnership from using the name, unless there are specific state statutes in place. Further, the burden of proof is now on Joe to prove that he thought of his name first, and he's in for a costly legal battle against the registered trademark holders.

Finally, it's important to note that a trademark protects your business, not the exact products you sell. Even if his business takes off like wildfire, Joe couldn't claim ownership over the concept of spaghetti and meatballs. The most he could do is potentially protect his specific recipe from use by others, usually as a trade secret. Other restaurants could still sell spaghetti and meatballs so long as they didn't misrepresent their product as Joe's.

What Happens When I Register My Trade Name?

Filing an application to register your corporation or LLC carries a filing fee of a couple hundred dollars, usually around $275. Once filed, the office of the secretary of state researches to make sure your requested name or a substantially similar one is not already being used by another company in the state. The benchmarks for what constitutes a "substantially similar" name vary by state. If the name is not already in use, it's registered to you for exclusive use in the state.

Steps to File a Registered Trademark

Registering a trademark is done through the U.S. Patent and Trademark Office (USPTO). Usually, it is done separately in each country in which you want protection. In New Zealand, for example, the Intellectual Property Office handles the process, but under the Madrid Protocol, there is some level of international recognition of trademarks.

Before you file, you need to make sure that the mark you are filing represents something distinctive and unique to you. You cannot, for example, simply trademark the word "dog" or "cat." However, the name "Lucy's Dog Grooming," could potentially be trademarkable.

Secondly, you need to conduct research to make sure that there is not a mark on file that is substantially similar to the one you are seeking to register. The important factor here is that a trademark only protects similar use. There are 45 different classifications of businesses (called the Nice classification), and you will need to file under the right one.

For example, a business that sells decorative weapons called the Swordsman's Keep would forbid other weapons vendors from using that name. A tavern could potentially call itself Swordsman's Keep, however, because it's an entirely different type of business.

After you have determined that your name is unique, specific to you, and not already in use, you file the proper paperwork with the USPTO, and they conduct their own research. You may have to answer questions about your mark, its intended use, your business, and whether it is too closely related to other marks on record.

Intellectual property law is long and complex. It can be difficult to know not only how to file to protect your business, but what kinds of protection you should seek. For this reason, it's always a good idea to secure the services of an experienced and qualified intellectual property attorney.

The attorneys available on UpCounsel are from the very highest rated lawyers in the nation. They come from such exceptional institutions as Stanford, Harvard, and Yale, and they represent decades of combined experience in helping to protect the intellectual property of others. By seeking counsel through our network, you are availing yourself of the best possible legal help. Sign on to get your business on the right foot today.