Have you ever wondered what a Trademark is and why it’s so important for your business? In short, a Trademark is a type of legal protection for your brand’s name, logo, or some other unique identifier. Essentially, it is a way to distinguish your business from competitors and prevent others from using similar branding that could confuse consumers.
Let’s break it down a bit further. Your Trademark could be a word, phrase, symbol, design, or combination of these elements. For example, think of the Nike swoosh or the McDonald’s golden arches. These are the most common. These marks are both iconic Trademarks that immediately bring their respective brands to your mind. (I mean, c’mon, as soon as I said swoosh and arch, you could see that mark immediately in your head, huh?)
Trademarks can also be “registered” and “unregistered” in the U.S. They must be filed and accepted by the United States Patent and Trademark Office (“USPTO”) to be “registered” and use that fancy R Symbol.
Now, you might be thinking, “Why do I need to Register my Trademark? Can’t I just use my business name and logo without worrying about legal protection?” Unfortunately, it’s not quite that simple. In the U.S., as soon as you use your mark in commerce (and some other minor ways), it becomes an unregistered Trademark and gains some legal protections based upon, what we attorney’s like to call, “common law rights.” Essentially, as soon as you start using your mark with customer sales on your website or in emails, you are gaining exclusive rights to use that branding in connection with your products or services so long as your mark is original (not been previously used by another business).
In the U.S., Trademarks are also “first in time, first in right.” It is exactly as it sounds—whoever uses the mark first has the legal right to it. This is prior to the mark even being “officially” registered with the USPTO.
So, why do we even need to worry about officially registering with the USPTO? Well, three (3) BIG reasons:
- It will save you money in the long run. By having your mark registered, people can easily find your official registration and, at large, will not even waste their time to file for it themselves. The USPTO will also automatically deny any marks filed after yours that is the same or similar to yours in your same field. It will essentially police your mark, so to speak. If your mark is not officially registered, it is your responsibility to object to any filings that may be made by people after you to officially register their mark. And, say that you don’t find out until later that someone registered a same or similar mark after your usage of it?—Well, now you have to take them to Court, spending thousands on attorney fees just to make your case and win your mark rights back.
- You have greater protection. As stated above, when your mark is already in the USPTO database, people typically don’t waste their time to copy it or use something that similar in your field. Once registered, there is a presumption of ownership and of exclusive right to use the mark across the united states.
Protection is also extended for those with sell goods online. Amazon’s Brand Registry is another key reason to federally trademark. It necessitates a federal trademark to use its benefits. Being part of it amplifies your trademark protections, giving access to tools that proactively prevent counterfeit or infringing products on Amazon. This aligns with the federal trademark’s goal: it simplifies the management and enforcement of your rights on a massive online platform. - You have a greater reach to obtain damages if someone infringes on your mark. Registered marks have the presumption of validity and ownership, which make any infringement action easier to prove, with several remedies available including an injunction that orders the other to stop using the mark, an order requiring destruction of the infringing articles, monetary relief, lost profits, and any other damages and costs sustained.
Not all Trademarks are created equal. Trademarks are categorized based on their strength and level of protection. The strongest type of Trademark is a fanciful mark, which is a made-up word or phrase that has no meaning outside of your branding (think “Google” or “Kodak”). These types of Trademarks are given the most protection under the law.
On the other end of the spectrum are descriptive marks, which simply describe the product or service being offered (think “Pizza Hut” or “Toys R Us”). These types of Trademarks are given less protection, as they are more difficult to distinguish from other businesses using similar wording.
If you’re starting a business, it’s vitally important to consider the implications of your Trademark and if it must be registered early on. Not only does it further protect your brand and prevent others from using similar branding, but it adds value to your business if you ever decide to sell.
At Bounds Law, we can help guide you through the Trademark registration process and ensure that your brand is protected. Schedule a Trademark Consultation HERE.
