1. What Is a Trademark?
2. Eligibility for Use of a Brand
3. How to Register

Trademarks and brands are a valuable aspect of your business. "Trademark" is the legal term for what is typically referred to as a brand name. A brand name serves to identify a company or its products. 

An effective brand name can evoke emotions and positive images in the minds of the consumer, which is why it's such a valuable part of your business. Because of this, many companies choose to get legal protection for their brand through trademarks.

What Is a Trademark?

Trademarks are a trade name or brand that's registered. A trademark or service mark can be any word, symbol, name, design, or combination that can be used to distinguish your company's products from those of other companies, as well as to indicate their source. This makes trademarks an important part of your business's reputation.

Trademarks identify your products and can include the following:

  • Logos
  • Images
  • Sounds
  • Smells
  • Designs

Federal registration of a trademark isn't necessary, though it has many advantages for your brand, such as:

  • Public record of your ownership claim
  • Legal presumption of ownership nationwide
  • The exclusive right to use the trademark in connection with products and services

A trademark allows you to protect your brand from use or misuse by competitors and helps you build a brand reputation and customer loyalty.

Trademarks also prevent confusion or manipulation of consumers, who will eventually associate certain attributes with a particular brand.

It's vital to your business to determine whether your company needs to register a trademark or service mark, a patent, or a copyright. All are forms of intellectual property, but each applies to different types of intellectual property and protection.

Eligibility for Use of a Brand

If your brand name isn't registered, it can be used by other companies without your consent. Any limitations would be on the state or local level where your business is registered. Trademarked names, however, can't be used other than in “fair use,” which is when a trademark is used without risk of ownership confusion.

How to Register

In the United States, the person who establishes use of the trademark is considered its owner. If you're the first company to use a unique mark to distinguish your product or services, you don't need registration to gain ownership rights. 

However, you do need to include the trademark symbol, TM, with the mark you own. This isn't a substitute for federal registration through the U.S. Patent and Trademark Office, though, since that establishes definitive ownership. With registration, you are able to take legal action against those who use your trademark without permission. Registration grants you to the nationwide proprietary right to your trademark. This gives you peace of mind, knowing that others can't accuse you of infringement for using your own design. 

A trademark doesn't need to be used when you file for a registration, but it must be used within three years of the filing date; otherwise, you could lose the rights to it. 

Registration is usually done on a country-by-country basis, but it's now possible to have registration on an international level through the Madrid Protocol. Trademarks registered in New Zealand, however, are registered in the Intellectual Property Office of New Zealand with a separate procedure for company and domain name registration.

You can register a trademark at the state or federal level. Brand names can also be registered as trade names at the state and local levels. Registration with the state is inexpensive but offers far less protection than federal registration.

International trademark protection is more expensive and difficult, as well as more complicated and expensive to enforce.

Businesses that are categorized as corporations, limited liability companies, and partnerships register with their state. By submitting a "Doing Business As" (DBA) statement within your city or county, you give notice to your region that this is your business name.

Trademarks can be obtained at the U.S. Patent and Trademark Office. Registering your brand requires a sample of the brand name, a completed application, and an application fee. It is incredibly important to choose a trademark that is eligible for federal registration and legal protection.

There's plenty of information for trademark law. You may want to consult a professional attorney to decide what's best for you. 

If you need help with trademark law, 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 like Google, Menlo Ventures, and Airbnb.