Trademark Basics FAQ
As a small-business owner or entrepreneur looking to protect your business name or company logo, you may have questions about the trademark registration process.
- What is a trademark?
- What is a service mark?
- How do I know whether I need patent, trademark, or copyright protection?
- What is the United States Patent and Trademark Office (USPTO)?
- What are common law trademark rights?
- What are the benefits of federal trademark registration?
- Do I have to register my trademark?
- How do I determine whether a mark is already registered?
- What are trademark classes?
- What are the trademark registration fees?
- Who may apply for federal trademark registration?
- Can a website or domain name be trademarked?
- Can a business name be trademarked?
- Are there strong and weak trademarks?
- Can I turn a weak trademark into a strong trademark?
- Where can I find trademark forms?
- Are there federal regulations governing the use of the TM or SM designations with trademarks?
- When is it proper to use ®, the federal registration symbol (the letter R enclosed within a circle)?
- What is trademark infringement?
- What are some resources for small-business owners looking to trademark their business name or logo?
- Why did my trademark application get rejected?
- Do I need an attorney to file a trademark application?
A trademark includes any word, name, symbol, or combination used, or intended to be used, in commerce to identify and distinguish the goods of one manufacturer or seller from goods manufactured or sold by others and to identify the source of the goods. In short, a trademark is the company's branding.
A service mark is any word, name, symbol, or any combination used, or intended to be used, in commerce to identify and distinguish the services of one provider from services provided by others and to identify the source of the services.
Patents protect inventions and improvements to existing inventions. Copyrights cover literary, artistic, and musical works. Trademarks are brand names and designs applied to products or used in connection with services.
Federal registration is not required to establish rights in a trademark. Common law rights arise from the actual use of a mark. Generally, the first to use a mark in commerce or file an intent-to-use application with the Patent and Trademark Office has the ultimate right to use and register.
- Constructive notice nationwide of the trademark owner's claim.
- Evidence of ownership of the trademark. You can use this in a trademark infringement lawsuit.
- Ability to sue in federal court.
- Registration establishes a basis for obtaining registration in foreign countries.
- Ability to register with the U.S. Customs Service to prevent the importation of infringing foreign goods.
No, but you should. Having a federally registered trademark has several advantages, including notice to the public of the registrant's claim of ownership, nationwide legal presumption of ownership, and the exclusive right to use the mark on or in connection with the goods or services outlined in the registration.
You may conduct a free search on the USPTO website using the Trademark Electronic Search System (TESS). TESS is the USPTO's online trademark database and search tool that allows individuals, startups, and trademark professionals to search for existing trademark registrations and applications.
Be aware that just because a search may result in the same term or logo you searched for, it could still fail the likelihood of confusion test. An attorney or private trademark search firm can conduct a trademark search with the likelihood of confusion test in mind.
Trademarks only protect your goods or services in a specific class you register them in. The trademark classes allow the USPTO and consumers to identify the goods and services. There are 34 classes for goods and 11 classes for services.
- Application fee (TEAS Standard) per class — $350
- Application fee (TEAS Plus) per class — $250
- Statement of use, per class — $100
- Fee for failing to meet TEAS Plus requirements per class — $100
These fees reflect applications that are electronically filed. For an exhaustive recent list of electronically filed and paper-filed applications, visit the USPTO website.
Only the trademark owner may apply for its registration. An application filed by a person who is not the owner of the mark is void. Generally, the person who uses or controls the use of the mark and controls the nature and quality of the goods or the services for which it is used is the owner of the mark.
Yes. To be clear, although a website or domain name may be given in full as something like http://www.companyname.com, neither the http, www, or .com are part of a name that can be trademarked. Rather, it is the name between the www and the .com that can be trademarked. A typical example would be a site like www.google.com, where Google would be the website or domain name that is also a trademark.
Business names by themselves are referred to as trade names. A trade name is not the same thing as a trademark. Many companies use their trade name on items such as letterhead, invoices, and other important documents. A trademark, on the other hand, is affixed to a product or a service that the business offers.
The two can overlap, and many businesses use their name both on letterhead and affix their name to products that they sell. For example, Xerox is both a company name used on letterhead and is also branded onto their copiers and business machines.
- Strong trademarks are distinctive, creative, or outside the ordinary. An example is Exxon.
- Weak trademarks include some aspect of their business in their name or include a geographic name. An example would be British Petroleum. The name indicates the location and tells you what the company sells.
Trademark law allows for otherwise weak names to become strong. If a normally weak trademark engages in substantial sales, advertising, or otherwise increases public awareness of the brand, the trademark will be considered distinctive. At that point, it can gain registration with the USPTO.
You can access forms through the U.S. Patent and Trademark Office's Trademark Electronic Application System (TEAS). TEAS can be used to apply for:
- Registration of a mark
- Responding to examining attorney's office action
- Notice of change of address
- Amendment to allege use
- Statement of use
- Request for an extension of time to file a statement of use
- Affidavit of continued use under 15 USC section 1058
- Affidavit of incontestability under 15 USC section 1065
- Combined affidavit under 15 USC sections 1058 and 1065
- Combined filing under 15 USC sections 1058 and 1059
No. Use of the symbols "TM" or "SM" (for trademark and service mark) could have local, state, or foreign law regulations. These designations usually say that a party claims rights in the mark and are often used before a federal registration is issued.
When is it proper to use ®, the federal registration symbol (the letter R enclosed within a circle)?
You can only use the federal registration symbol ® once the mark is registered with the U.S. Patent and Trademark Office. This is true even if you have an application pending. Only use the federal registration symbol on goods or services that are the subject of the federal trademark registration.
Several foreign countries use the letter R enclosed within a circle to show that a mark is registered there. Use of the symbol by the holder of a foreign registration may be proper.
Trademark infringement is when one party uses a trademark identical or similar to another trademark owned by another in connection with goods and services that would confuse consumers. The unauthorized use of the trademark gives the trademark owner a claim to trademark infringement.
Cease-and-desist letters are often the first step in addressing trademark infringement. If the infringer does not follow the cease-and-desist letter, the trademark owner may pursue legal action and monetary damages.
For more information about trademark infringement, visit FindLaw's Trademark Infringement FAQ page.
Other resources and support through initiatives like the U.S. Small Business Administration (SBA) and the Small Business Development Center (SBDC) aid small businesses in successfully managing intellectual property rights, known as IP rights.
The contact information for the SBA and SBDC is:
- SBA's Answer Desk: 1-800-827-5722 or email firstname.lastname@example.org Monday-Friday, 9:00 a.m. to 6:00 p.m. ET. Closed on all federal holidays.
- SBDC: Find a Small Business Development Center near you.
Trademark rejection happens for various reasons, such as:
- Likelihood of confusion
- Offensive content
- Level of distinctiveness
- Geographical terms
If you experience trademark rejection, consult a trademark attorney to explore your options.
No, although employing an attorney familiar with trademark matters is highly advised. An applicant must follow all substantive and procedural requirements of the Trademark Act and Rules of Practice, even if an attorney does not represent them.
Get Legal Advice From a Trademark Attorney
Suppose you want to proceed with federal trademark registration. In that case, it is highly advised to seek the help of a trademark attorney. A trademark attorney can help you with the trademark application process, filing fees, understanding trademark maintenance fees, and responding to office actions.
For more information about intellectual property rights, visit FindLaw's Intellectual Property section.
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Contact a qualified business attorney to help you identify how to best protect your business' intellectual property.