What does trademark mean? To answer that question, it would be useful to know exactly what a trademark is. Trademarks protect the intellectual property and use of a specific idea or symbol, and can be very useful for a business or person with a distinct brand.

What Do Those Copyright and Trademark Symbols Really Mean?

For copyrights, the law is there to make sure that certain distinct creative works are protected. Copyright law, however, protects works, not procedures or ideas.

Trademark law protects certain words or designs, and their variations and combinations, that distinguish a brand. Trademarks help companies keep their own distinct brand as compared to others.

As examples, various songs and books have their protection through copyright law. In contrast, company names and certain unique words have their protection through trademark law.

Trademarks are very useful for businesses that want to use brands to help customers easily distinguish their company and product. These symbols make it easy for consumers to know where a product or service is coming from. Trademarks also make it so that companies are interested in building their brand through providing high-quality products and services.

Work products that are registered with the Library of Congress’ Copyright division will use the symbol ©. However, even if you don’t formally register your copyright, you can still use the © symbol and have various protections under copyright law for your work.

The © symbol will let others know that your work is protected through copyright law, and therefore if others infringe on your copyright they cannot claim lack of knowledge of the copyright protection. The © symbol should be followed by the date when the copyrighted work was first published.

If you want to register your copyright formally with the Library of Congress, you can get many additional benefits and protections. These include getting certain causes of action under statute as well as gaining presumptive protection that your work is copyrighted, as anyone can do a copyright search with the Library of Congress.

Trademarks are designated through the ® and “TM” designators. However, in order to use the ® symbol, you will need to register the trademark formally with the federal government’s Patent and Trademark Office. You can, however, use the “TM” symbol freely without needing to formally register the trademark.

Under trademark law, you get certain protections automatically when you are using the distinguishable trademark in your business. However, by registering the trademark, you get many more benefits, such as knowing your trademark is proper, getting federal national use of the trademark, and that others are presumed to know your trademark is in force.

Trademarks are, however, restricted to just the industry sector or business service that is connected to the trademark. Also, those who were using your trademark in a region, without registering, prior to your use and registration of the trademark still have the right to use the trademark.

As an example of this, if you use a trademark for selling fast food in several states and begin selling other kinds of fast food products too, then your trademark follows those products. However, if someone in a state you have not been operating in is already using that trademark, they can still use it even after you have registered it federally. They will be limited, however, to the small region they were using it in.

Remember that copyright law protects created works while trademarks protect brands and symbols. Both are filed through different offices.

  • The © designator is used for copyrighted items, whether they are registered formally or not.
  • The TM symbol is used for both registered and unregistered trademarks.
  • The ® symbol is restricted to just those trademarks which have been formally approved.

Remember that trademarks are gained automatically, but formally registering the trademark can be beneficial. However, registering your trademark still will limit the trademark protection to just the industry sector you are operating in. Prior users of the trademark will still get to use it in the region they have been already using it in.

What does it mean "to Trademark"?

If someone tells you that you need to trademark something, that means you will need to file it officially with the USPTO.

While you gain trademark rights automatically when you use a brand, nonetheless such rights are restricted geographically and are also uncertain.

Federal registration of trademarks gives you national reach and certainty. However, the registration process requires several layers of approval, and you may be rejected for many reasons. These reasons may include:

  • If the trademark is far too general
  • If the trademark is not distinguishable or connected to your brand clearly
  • Obscene trademarks are not allowed
  • Those connected with geographic regions and names
  • Those that may cause public confusion

What is a Service Mark?

Service marks are trademarks that are specifically related to services that are provided, rather than goods.

When are the symbols "TM," "SM" and "®" used?

The “TM” designator is used to claim a trademark, even if the trademark is unregistered. It can be used anytime you believe you have a trademark.

The “SM” designator is when you want to claim a service mark, whether it is registered or not. It is interchangeable, for services, with the TM mark.

® can only be used if the trademark has been officially registered and approved by the USPTO. It cannot be used otherwise. It also cannot be used even if your USPTO application is pending, as you might complete the entire registration and get approved before using it.

What's the difference between trademark, copyright, and patent?

Trademarks are used to prevent infringement of certain distinct brands. Copyrights keep finished works secure from copying. Patents ensure that designs and inventions are protected.

Copyrights and patents are limited in time. However, trademarks are able to be valid forever if the business consistently uses the trademark.

Do I need an attorney to apply for registration of a Trademark?

The trademark application is relatively simple. While you may want to use legal services, it is not required to.

How long does it take to secure a Federal Trademark?

Usually, the USPTO will complete a trademark approval around a year. Even though the process can be lengthy, if your application is approved then the formal trademark protection will be retroactive to the original date that you filed your application, rather than the date the trademark was officially approved.

You, therefore, can begin using your trademark immediately, without having to wait for formal approval from the USPTO.

What is the difference between State and Federal Trademarks?

Besides filing a USPTO trademark application, you can also apply for trademark protection at the state level. The state-level trademark protection only protects your trademark in that one state. Because it is only restricted to one state, state-level trademark protection is far less beneficial than USPTO registration.

However, if your business only is active in one state, you may want to just get your trademark in that state. If your business is involved in anyway nationally or across state lines, federal registration might be far more beneficial. If you want to expand your business now or in the future, federal trademark registration can be useful to consider as well.

What is Interstate Commerce?

One major requirement, however, to register with the USPTO for a federal trademark is that you are engaged in interstate commerce. Interstate commerce is defined as doing business in either multiple states or internationally.

The bar for interstate commerce is more than just using a website that can be accessed by anyone. Interstate commerce usually means at least selling some goods or services to people in other states.

If you are a business that just operates locally and have no interstate commerce, then you are not able to apply for a USPTO trademark. Rather you will have to apply for a trademark just with your state.

If you intend to start doing business across state lines however in the upcoming near-future, you can then apply for a USPTO trademark. This will require you to utilize an “intent” application for trademark. The intent application will allow you to keep your name reserved for the future.

Do I have to be currently using a trademark in order to file?

You can file a trademark application only when you are actually using a trademark through interstate commerce. You cannot file and register when you are merely advertising the trademark, but rather need to actually be using it actively. If you are actively using it, you can file an “actual use” application.

However, if you have a significant basis for using the trademark in the future, then you can reserve the trademark through an intent application.

The cost of either an “actual use” or “intent” application is the same, roughly $100. However, if you file an intent application, you must later also file an actual use application.

When you file a use application, you must include when is the first time you actually used the trademark in goods and services and if it is being used as part of commerce across states.

What is a “common law” trademark?

When you use trademarks, you automatically gain trademark protection through common law. However, the trademark needs to be distinct and connected to your brand and product. You can gain this trademark protection both at the state-level and interstate-level. If you use either the TM or SM designator you can further make clear you intend to trademark the product or service brand.

It is important to note however that this kind of trademark protection is minimal. If you really want to protect your trademark securely, it is best to register it properly with the USPTO or your state trademark authority.

Should I file a federal trademark if I have common law rights?

You should. Federal trademarks are powerful and in lawsuits are given the benefit of the doubt. A common-law based trademark has to work hard to provide evidence that they were using it beforehand, sometimes through a very detailed process.

Who May File an Application to Register a Trademark?

Anyone is able to apply for a trademark, whether they be an individual or business.

What is the benefit of a trademark search?

Doing a trademark search will help you find if your desired trademark is already registered. If it is already registered, you will be unable to use it. If the trademark is being used but is unregistered, you will want to see how far the use is to determine what kind of geographic claim you can make. If someone is already using an unregistered trademark, your rights will be limited to where they have not already used it.

What if some other company is already using my trademark?

If there is already another business using your desired trademark and they operate in a similar industry, you likely will not be able to claim the trademark, particularly if they have registered it. If they have used it nationally and widely, even without registration, they have then likely also gained full geographic use of the trademark as well.

Remember however that if they are only using the trademark in a specific region, you may still be able to register it for yourself and use it in regions they have not used it already.

If my trademark search shows a valid registered trademark but the owner of the trademark is no longer using the mark, can I still file?

This varies depending on the situation. If the trademark has been sold or is only temporary not being used by them, the trademark is still restricted.

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