Trademark Law

Every small business owner needs to know the four types of intellectual property. The four forms of intellectual property rights are:

• Trademarks
• Copyrights
• Patents
• Trade secrets

In the early stages of a small business, business owners need to establish a strong and distinctive business name. More importantly, startups and entrepreneurs need to know which type of intellectual property protection covers their many intangible assets.

Trademarks protect:

• Company names
• Logos
• Symbols
• Slogans
• Trade dress
• Brand names

FindLaw's Trademarks section provides information on creating, registering, and protecting a trademark and tips on avoiding trademark infringement problems. This section also links to forms and resources from the United States Patent and Trademark Office (USPTO).

What Do Trademarks Do?

A trademark not only gives the trademark owner the exclusive right to use the mark but also allows the owner to prevent others from using a similar mark that can be confusing for the general public. A trademark cannot prevent another person or company from making or selling the same goods or services under a clearly different mark. 

Rights to a mark can be established through the legitimate use of the mark in a commercial or business setting. Registration with the U.S. Patent and Trademark Office (USPTO) is not required but offers extra protections.

When a person claims the rights to a particular mark, they can use "TM" (for a trademark) and "SM" (for a service mark) to show that the mark is trademarked. The symbol "®" designates a federally registered trademark and can only be used after the USPTO registers the mark. The ® symbol cannot be used when an application is pending. The ® symbol may only be used with goods and/or services listed in the federal trademark application.

Trademark Registration

Registering a trademark with the USPTO is not a requirement to receive trademark protection. Instead, trademark protection is established through the legitimate use of the mark (in a commercial setting). Registration does provide certain advantages to the trademark owner. For example, registering a trademark with the USPTO provides a legal presumption that the registrant is, in fact, the owner of the trademark. 

Registration is also a prerequisite for the trademark owner to file a lawsuit related to the trademark in federal court.

If a person does decide to register their trademark, they must follow a specific set of standards and procedures. The application for a trademark must include:

• The name of the applicant
• Name and address for communications between the applicant and the USPTO
• Depiction of the mark
• The list of goods and/or services the mark will be used for
• The filing fee

Certain applicants may also need a specimen of use, which is a real-world example of how the mark is used. A few examples of a specimen of use are:

• Brochures
• Websites, but the URL must be included directly on the specimen along with the accessed date and original date
• Tags on a physical piece of clothing or product
• Labels
• Listings on social media

If an application is incomplete or doesn't conform to the standards set forth by the USPTO, the filing fee will not be returned to the applicant.

Designating Trademark Protection

A mark used in association with services is a service mark, while a mark used to identify goods is a trademark. The term trademarks can generally be used to refer to both service marks and trademarks.

A person who claims trademark protection in a particular slogan, symbol, short phrase, or name can use "SM" for a service mark and "TM" for a trademark. No formal registration or other process is required to use either of these letters.

If a person decides to register a trademark with the USPTO, they also have the option to use the symbol "®." This symbol indicates federal registration and can only be used in association with the goods and/or services specifically listed in a trademark application.

Other IP Rights To Keep In Mind

Copyrights

Copyright protection safeguards original works of authorship. Examples of what copyrights protect include literary works, musical works, films, art, and computer software. The U.S. Copyright Office handles administering and overseeing copyright laws. The U.S. Copyright Office registers copyright claims and keeps a database of registered copyrighted works.

Patents

Patents protect inventions and innovations. There are three different types of patents:

• Design patents
• Plant patents
• Utility patents

If you need help with filing a patent application to receive patent protection, contact a patent attorney near you.

Trade Secrets

Trade secrets are valuable business information that gives a business a competitive advantage. Trade secrets include formulas, recipes, software algorithms, and manufacturing processes. Companies protect trade secrets by requiring employees to sign non-disclosure agreements (NDAs).

Need Legal Advice? Hire a Trademarks Attorney

Trademark protection is a vital asset to your business, as it allows you to distinguish the goods or services you provide from other businesses in your field. An experienced trademark attorney can help you figure out if your trademark qualifies for trademark protection. They can also help register your trademark with the USPTO and sue if someone else uses your trademark without permission.

For more information about IP protection, visit FindLaw's Intellectual Property section.