What Does Trademark Mean? Everything You Need to Know

Assignment Content

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 by 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 the 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.

A ® 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 federal 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 is only active in one state, you may want to just get your trademark in that state. If your business is involved in any way nationally or across state lines, federal registration might be far more beneficial. If you want to expand your business now or in the future, a 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 near future, you can then apply for a USPTO trademark. This will require you to utilize an intent to use application for the trademark. The intent to use application will allow you to keep your name reserved for the future.

Do I Have to Be Currently Using a Trademark 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 to use application.

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

When you file a use application, you must include 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 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 are 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 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 temporarily not being used by them, the trademark is still restricted.

Can I Register a Trademark in the U.S. If I Live Outside the U.S.?

This is possible, but if you don't live in the United States, you'll need to designate a U.S. representative to receive correspondence and documents pertaining to the registration process on your behalf.

How Do I File for an International Trademark?

Trademarks normally have to be filed individually in every country you want to enforce them. Ultimately, this can end up being quite expensive. There is good news though. Certain common filings, such as filings that offer protection in more than one country, have recently become available. This can potentially save you a lot of time and money if you need international trademark protection.

An example of one of these filings is when you file in a European country. When you register a single trademark in the European Union, it's possible to gain protection for that trademark in most of the EU's participating countries. That covers most of the continent, so you don't have to worry about filing for trademark protection in every single country in Europe.

Another example is when registrants take advantage of the Madrid Agreement. According to this protocol, which is the largest common filing in the world, a single registration in the United States also includes registration in over 50 countries all over the world.

If I Register a Specific Name as a Trademark, Will I Be Able to Prevent Its Use by Everyone Else in the World?

Unfortunately, no. Owning a registered trademark doesn't necessarily allow you to keep others from using the same trademark, or even a similar one if they're using it to sell products or services that aren't identical to your own. In other words, if you're using your trademark to sell computer software and somebody else is using a very similar name to sell housing supplies, there's not much you can do to stop them.

In addition, the protections offered by a federal trademark only extend to:

  • Companies that sell products or services in the United States
  • Companies that sell products or services between the United States and a foreign country

Can I Trademark My Name and Logo Together in One Application?

Every trademark needs to be registered separately if you don't intend to use them together. Simply put, although you're using different things to identify the same company, product, or service, you're typically not going to use them as a single object. Common trademarks that must be registered separately include things like:

  • Names
  • Slogans
  • Domain names
  • Logos
  • Designs

In addition, even if you intend to use the name of your business and your logo side by side, they are still considered separate trademarks and cannot be registered together.

Can I Trademark My Domain Name?

Absolutely. You can and you should. However, keep in mind that your domain name needs to be used as a means of distinguishing or identifying your products and services from those of other companies.

Do I Pay Annual Fees to Maintain My Trademark?

There are no maintenance fees associated with owning a trademark. You will, however, have to renew your registration every five to six years and this does require the payment of a renewal fee. Keep in mind that the United States Patent and Trademark Office does not remind you that your renewal is due. It's your responsibility to keep track of this and make sure you submit your renewals on time. If you don't, your trademark will likely be canceled, and you'll have to register all over again.

Rules for Using Descriptive Trademark

There are a few simple rules to keep in mind when using a descriptive trademark:

  • The trademark must be used as a proper adjective.
  • The trademark must be stylized in some way when it's used inside of text.

For example, use of bold fonts, italics, and specific colors.

  • The trademark must be used with labels such as "TM" or specific language that lets the reader know where the trademark is effective.
  • Once registered, the trademark should never be altered. It should always be used in exactly the way it was registered.
  • Never use the trademark as a verb.
  • If a trademark was registered as a singular, never use it as a plural and vice versa.
  • Be sure you manage the use of the trademark by other participants in the market.

For example, if your clients want to make use of your trademark, they should be required to indicate that the trademark is registered by your company.

  • Don't forget to enforce the trademark.

React quickly when it's used improperly or without your permission. This can be done either by explaining how it should be properly used or by sending a cease and desist letter to the appropriate people.

If you need help learning more about trademarks, 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, Stripe, and Twilio.