Trademark 101: Protect Your Brand

To gain consumer popularity and recognition, growing businesses must protect their branding assets.  They do this by applying for Federal trademarks.  Read this article to learn more about what a trademark is and why Federal registration matters.

The Basics

A trademark is any word, design, slogan, sound, or symbol that serves to identify a specific person or business’s goods or services.  Interestingly enough, you can trademark almost anything that identifies the product brand, including: sound, color, and even smell.  Typically, trademarks are separated into two categories: “word marks” and “logo marks.”  Word marks consist simply of the word or words that make up your brand name (e.g. “Risky Creative Agency”).  Logo marks, on the other hand, consist of graphic elements, and may include words as well (e.g. the Nike swoosh with the word “Nike” underneath).  Throughout this article we refer to both of these collectively as a “mark.”

Trademark rights make up one category of intellectual property (“IP”).  Other IP includes patents, copyright, and trade secret.  You can protect a brand asset with more than one form of IP—for instance, businesses often trademark and copyright their company logos or characters.  Ultimately, which type of IP protection you seek will depend on the nature of the asset you seek to protect as well as your business goal.  An inventor seeks a patent to protect his invention.  An individual seeks a copyright to protect her original work of authorship.  A business protects its valuable (and generally unknown information) with trade secrets.  In short, you want trademark rights to protect your brand and logo; copyright rights to protect your photos, creative products, or other artistic expressions; patent rights to protect your novel, non-obvious invention; and trade secret rights to protect your secret recipes (aka your “secret sauce”).

Why Register?

Yes, it’s true: as soon as you use your mark in commerce you have trademark rights over the mark.  So, if you already have rights, why register it with the United States Patent and Trademark Office (“USPTO”)?  Well, because without an official registration, your rights are weak and limited to the geographic area where you sell your products or provide your services (i.e. where customers recognize your mark).  Furthermore, without conducting a search or preparing a formal application, you could unknowingly be using another person’s trademark; thus, subjecting yourself to trademark infringement liability.

Besides having weak trademark rights, not registering your mark also makes it difficult to police your mark outside of your limited geographic area.  Furthermore, other businesses could unknowingly be using your mark (or one very similar) to identify their goods or services; thus, creating the potential for consumer confusion down the road.

Specific Benefits

Obtaining a federal trademark registration will:

  1. Create the legal presumption that you own the mark, and that you have the exclusive right to use the mark throughout the United States in connection with your goods/services;
  2. Put the public on notice that you own the mark by listing it in the USPTO database;
  3. Give you the right to sue in federal court about the use of your mark;
  4. Make it easier to apply and obtain foreign trademark registrations; and
  5. Allow you to use the “®” sign in connection with your mark (as opposed to the ™ sign used for unregistered marks).

Obtaining trademark rights is a complex, and yet extremely important process.  In today’s digital world, everyone lives on their screens, and thus your brand is your storefront.  Gone are the days of newspaper ads and having a great sign out front to attract customers.  Your logos and your eye-catching branding brings in business.  We recommend all growing businesses consult an attorney to protect their brand(s) and to ensure other companies do not divert their business by using confusing, similar branding.

Ready to take the plunge and get your mark officially registered?  Read our article on trademark registration here.

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