One of the most important things you must do when starting a business is to make sure your business is distinguishable from other businesses, like your competitors. One way to do this is by establishing one or more trademarks–specific words, symbols, designs, etc. that become part of your brand and make it easy for people to identify you amid the throng. Once these trademarks are created, they become part of your intellectual property and must be legally protected so others can’t steal them and use them.
Of course, like almost anything of a legal nature, trademarks can be a confusing business. Let’s try to demystify this concept by giving you a crash course of sorts. Here’s all you need to know about setting up a trademark for your business.
What Is a Trademark?
A trademark is a word, phrase, symbol, or design that identifies and distinguishes the source of the goods of one party from those of others. In short, a trademark is part of brand. As a business owner, you want to make sure that your brand is protected from infringement and dilution, and that’s where trademarks come in.
What Can Be Protected as a Trademark?
In theory, nearly anything can be protected as a trademark as long as it meets the following three requirements:
- It must be used in commerce;
- It must serve to identify and distinguish the goods of one party from those of others; and
- It must be used in connection with the sale of goods or services.
Examples of things that have been protected as trademarks include words, phrases, logos, colors, sounds, product designs, and even smells.
What CAN’T Be Trademarked?
As with any rule, there are exceptions. Here are a few examples of things the government is likely NOT to let you register as a trademark:
- Generic words or phrases. (You can’t trademark the word “THE”, for example.)
- Descriptive marks. Typically, a mark that describes the goods/services you provide can’t be trademarked (for example, a business producing red t-shirts would have a hard time getting a trademark for “RED T-SHIRT CO”).
- Proper names or likenesses (unless it’s you, or you have express permission from the person in question).
- Government symbols, insignias, or likenesses of current/former American Presidents.
- Any word or phrase considered vulgar, scandalous, deceptive, or disparaging.
Why You Should Protect Your Trademarks
There are several reasons why you should take the time to trademark your business’s intellectual property, including:
- To ensure that you have exclusive rights to use your mark in connection with the goods or services specified in your registration;
- To deter others from using a similar mark, which would dilute your brand and possibly divert your sales to others;
- As evidence of your ownership of the mark (so you can’t be sued by someone else); and
- To give you the ability to bring a lawsuit against anyone who uses your mark without your permission.
How Do I Register a Trademark?
You can file for a trademark by filing an application with the United States Patent and Trademark Office (USPTO). The USPTO will review your application to make sure that it meets all legal requirements and is not too similar to another registered trademark. If your application is approved, your trademark will be published for opposition. This gives other businesses an opportunity to object to your trademark if they believe it infringes on their own rights. Assuming no one objects (or if any objections are overcome), your trademark will be registered and you will have exclusive rights to use it as long as it remains active (note that trademarks must be periodically renewed or they will be abandoned and up for grabs).
Enforcing Your Trademark Rights
Once you have a registered trademark, you need to actively enforce it to prevent others from infringing on your rights. The best way to do this is to monitor the use of your mark online and in the marketplace. If you see an authorized use of your mark (or something that resembles your mark too similarly), you’ll want to provide proof of your trademark registration and send a cease and desist request. If they refuse, you may need to file a lawsuit to stop them. If you prevail in court, you may also be able to recover damages in the amount of whatever losses you incurred by the infringement or whatever profits the offending party made by using your trademark unlawfully.
Leave It to Your Legal Team
Of course, the process of registering and protecting a trademark is even more complicated than it sounds in the brief synopsis we’ve shared here. The best way to have full peace of mind with your trademark is to have an experienced general counsel handle the registration and monitoring processes for you. At Hood Venture Counsel, we have plenty of experience with trademarks and other IP protections. We can advise you as to the best ways to ensure your registration is successful, and we can oversee the process to make it as streamlined as possible. Contact us today to learn more.
