How To Trademark a Business Name
You own a growing business. You have a unique name, product, business concept, service, logo, tag line, or a combination of those. As a business owner, you want to protect your business from anyone who might use its name without your permission. Trademark law allows you to protect your interest in that intellectual property.
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Do You Need to Trademark Your Business?
Properly registered trademarks provide exclusive legal right and protection to use those names, symbols, and other unique marks of that business. Owning a trademark allows the business that holds it to block another business from using it and provides a way of enforcing those rights through various legal remedies for trademark infringement.
A trademark is a business asset. Owning a trademark also has the benefit of protecting against foreign products in the US, making it easier to secure international rights. It also means that the trademark will show up in an internet search. Finally, it allows you to use the ® symbol near the trademarked name, symbol, or unique mark.
If you are a small business with a limited customer base and one or two locations, there is probably no reason for you to trademark your name. Even if you do not get a federal or state trademark, you will still want to register your trade name with the state as a common law trademark.
But if you want to expand your business beyond your current location, you should secure a formal trademark.
Find Out if Your Name Is Available To Be Trademarked
You first have to conduct a clearance search to see if the name you have chosen is federally trademarked or registered or trademarked in your home state. The USPTO and other organizations have trademark databases that can be searched to see if the name you have picked is available. The name cannot be identical to another trademarked name, and it cannot be so close to that name that there is a likelihood of confusion between the two names.
Once you clear that hurdle and have a name that can be protected, you can move through the following steps.
Different Kinds of Trademarks and Trademark-Like Protections
You can take several different kinds of trademarks and trademark-like actions to create legal protection for your intellectual property rights in your business marks. These are:
- Federal Trademarks. For US businesses selling products, and for the logos or tag lines of those businesses.
- Federal Service Marks. For US businesses selling services.
- International Trademarks. For businesses engaged in international trade.
- State Trademarks. Similar to a federal trademark, but only for one state.
- Common Law Trademarks. A business can own these without going through the formal trademark registration process. They are enforceable but subject to proof.
- State Business Registrations. These ensure another company can't use a name, but they don't carry the same protections as a trademark.
Federal Protection: How To Trademark Your Business Name
A federal trademark provides the most significant protection for a business's intellectual property by granting exclusive rights to the trademark holder to use that mark in commerce. Acquiring one takes time, money, and a formal process overseen by the United States Patent and Trademark Office (USPTO), a federal agency located in Washington, D.C.
Before you begin this federal registration process, you should consult an attorney. You may be able to do it yourself, without legal counsel, but it will take a lot longer, and the process may not turn out the way you want. Even if you do most of the work yourself, you should at least have an attorney as backup and check your work as you go.
There is an application fee for the initial filing for federal trademarks. It is either $250 or $350 per trademark class, depending on how you file the application. Federal trademark applications are filed through the Trademark Electronic Application System (TEAS).
Once your application is submitted, it will be reviewed by an attorney with the USPTO. You will receive a letter either granting the trademark or pointing out problems with the application. If there are problems, you will have six months to correct them. Once your trademark is granted, you are then allowed to use the ® (Registered) symbol.
After your trademark or service mark is granted, you will also have sets of follow-up paperwork. These forms can be as complex as your original trademark filing.
Federal Service Marks
A federal service mark (sometimes "servicemark") provides the same protections as a registered trademark, except that it is used for service businesses. The difference between a service and a product is akin to the difference between a restaurant (the service) and the meals it serves (the products).
The service mark application process is the same as for a product trademark, and a company granted a service mark can also use the ® symbol.
The authority that regulates trademarks in the European Union is the European Union Intellectual Property Office (EUIPO). The EUIPO online trademark application process is similar to the USPTO process.
One other organization that grants international trademarks is the World Intellectual Property Organization (WIPO). This organization administers eight separate intellectual property rights agreements among 193 member countries, including the United States.
State Registration of Business Names
Every state has a different process to register a business name, with various means and laws to enforce those rights. This FindLaw page links to the business registration processes in each state. You need to perform a clearance search for each state.
Every state has a different process regarding its own trademarks. This page links to those processes and laws for each state.
Common Law Trademarks
A common law trademark right occurs any time anyone publishes a unique name or phrase in association with any product or service that is not otherwise trademarked. Common law ownership rights are those created by court decisions. A common law trademark right gives the owner many, but not all, of the rights of the officially registered owner of a ® trademark.
The owner of a common law copyright can use the TM (trademark) or SM (service mark) symbols freely but cannot use ®.
Common law copyrights are state-level only and can only be enforced within a state. If you want to enforce ownership rights to a trademark, you should register your trademark with the USPTO.
Patent and Trademark Resource Center
Many libraries have a patent and trademark resource center administered by the USPTO.
Talk to a Trademark Legal Professional
Trademark applications may seem like simple form-filling, but it is a legal process involving the United States (or another) government and its lawyers. It would be best if you considered using a trademark lawyer for legal advice and assistance with government filings in your pursuit of trademark protection.
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