"What's a trademark?" is a relatively common question. A trademark is a like a badge of origin. It distinguishes services or goods of one business from another. Like trademarks, copyrights and patents protect your intellectual property, but they protect a different form of property. A trademark can take different forms:

  • Slogan
  • Logo
  • Words
  • Sounds
  • Colors

One example is Coca-Cola. The name Coca-Cola is a trademark, as well as Coca-Cola written in a stylized script and the brand's original curvy bottle design.

A service mark is a trademark that is used for a business that provides services rather than sells goods. However, the term trademark often refers to both service marks and trademarks.

When you register a trademark, it's for a specific product or services that fall under individual subjects, which are known as classes. Someone else can register a similar or identical trademark, provided it's in an unconnected and different class. An example would be Robin's matches, Robin's electronics, and Robin's rental cars.

Tips for Creating a Proper Trademark

When creating a trademark, remember that it cannot include things like common surnames, registered company names, geographical names, or anything else that implies royal patronage. You must verify the trademark you want does not infringe on someone else's trademark and that you have the legal right to use it.

Here are some tips for when you're deciding on your trademark:

  • Start by deciding what types of services or goods you need to protect.
  • It's important to think about your future plans to ensure your protection will cover all the areas your business will eventually need.
  • Make sure you use your trademark in the correct manner, as using it incorrectly could cost you your reputation.
  • Don't make it too generic or you could lose it.
  • Once you have your trademark registered, make sure no one else is infringing on it.
  • If someone is infringing on your trademark, you will need to speak to a trademark attorney about the next steps to take.

The primary advantage of having a trademark is the exclusive right to use it, but it also allows you as the owner to prevent other people from using a similar mark that could potentially confuse somebody.

Qualifying Trademarks

You may register a trademark for a variety of things:

  • Logo or label
  • Product name
  • Sound
  • Product package
  • Business name
  • Design or symbol

There are some things you cannot trademark or protect yourself from:

  • A trademark won't protect an invention or idea.
  • You are not able to stop another person from selling similar products or utilizing a different trademark.

What Is a Trade Name?

A trade name is similar to a nickname for a business and is also called an assumed name. By operating a business through a different entity like an LLC or corporation, you can help protect personal assets from business liabilities. If you choose to put a sign on your business door that has a name without LLC or inc. behind it, you will need to let everyone know your business name is just a nickname for your official name.

How Do You Protect a Trademark?

Protecting your trademark is done by using it in commerce to identify the source of your business's services or goods. The United States Patent and Trademark Office (USPTO) uses the main criteria that a trademark cannot be confused with another. If you include a name with your trademark, it has to be unique. A trademark may have three different types of protection:

  • Federal registration
  • Common law protection
  • State registration

If you have a mark you've been using but haven't registered it, it may have common law protection. This means you could prevent other people from using it provided you can show you used it first. It may be limited to the geographic areas where you conduct business. If your trademark falls under common law, it will be protected for as long as you use it, but you could lose that protection if you fail to enforce your rights.

If you filed a trademark in the state where you live, you will receive state protection, but not nationwide protection. By filing your trademark with the USPTO, you will get national protection and establish when you began using the trademark, and there are other advantages as well. It means you can file a lawsuit in federal court if someone infringes on your trademark.

If you need help with understanding what constitutes a trademark, you can post your legal need on UpCounsel's marketplace. UpCounsel only accepts 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.