By FindLaw Staff | Legally reviewed by Amber Sheppard, Esq. | Last reviewed February 11, 2024
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As a small-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 intellectual property, specifically your business name, designs, logo, and tagline.
Trademarking your business name involves several steps and government agencies. Depending on the nature of your business, you may want to trademark your business name with your state, federally, or even internationally.
This article will walk you through the steps to trademark your business name. It will also help you determine the appropriate level of trademark protection you need.
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Properly registered trademarks provide exclusive legal rights and legal protection to use that business's names, symbols, and other unique marks. Owning a trademark allows the business to block another business from using it if it would confuse consumers. It provides a way of enforcing those rights through various legal remedies for trademark infringement.
A trademark is a business asset. Owning a federal trademark also protects against foreign products in the U.S., 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 ® trademark 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, you may not need to trademark your name right away. This is because you face less risk of others copying or imitating your business name. However, if you expand your business beyond your current location, you should secure a formal trademark.
First, conduct a clearance search to see if someone else has already trademarked, applied for a trademark, or registered your selected business name federally or in your state. The U.S. Patent and Trademark Office (USPTO) and other organizations have trademark databases of registered marks you can search to see if the name you have picked is available. The most up-to-date database will be the USPTO.
The name cannot be identical to another trademarked name. It also cannot be so close to that name that there is a likelihood of confusion between the two names for the same or similar goods or services. Even if a similar name doesn't show up on your search, it could lead to a trademark application rejection later. The name may sound similar or translate to that name in another language.
Once you clear this hurdle and have a name that qualifies for trademark protection, you can move through the following steps.
There are several types of trademarks and trademark-like actions that protect your intellectual property rights in your business marks. These are:
Keep reading to learn more about each of these types of trademarks and protections.
A federal trademark provides the most significant protection for a business's intellectual property. It grants exclusive rights to the trademark holder to use that mark in commerce in the registered classification of goods or services. They also provide rights that allow businesses to take legal action in federal court to protect their mark.
The United States Patent and Trademark Office (USPTO), a federal agency in Washington, D.C., oversees federal trademark registration. Acquiring a federal trademark is a formal process requiring time (about 10 to 18 months) and money. Filing fees start at $275 per classification.
You will file your federal trademark application through the Trademark Electronic Application System (TEAS). You have two filing options:
It helps to consult an attorney before you begin this federal registration process. You may be able to do it without legal counsel — but it will likely take longer, and the process may turn out differently than you expected. Even if you do most of the work yourself, you should have an attorney as backup to check your work as you go.
Once you submit your application, an attorney at the USPTO will review it. You will receive a letter either granting the trademark or pointing out problems with the application. If there are problems, you are issued a timeline to respond, or your application will be abandoned. Once the USPTO grants your trademark, you can use the ® (Registered) symbol.
The process isn't over after approval — you will also have sets of follow-up paperwork. These forms can be as complex as your original trademark filing.
A federal service mark provides the same protections as a registered trademark, except that it protects 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. A company granted a service mark can also use the ® symbol.
The European Union Intellectual Property Office (EUIPO) regulates trademarks in the European Union. The EUIPO online trademark application process is similar to the USPTO process.
The World Intellectual Property Organization (WIPO) also grants international trademarks. This organization administers eight separate intellectual property rights agreements among 193 member countries, including the United States.
State trademarks protect your business's name, logo, or other distinctive symbols only within the state that granted the registration. If your business operates nationally or plans to grow, you may want to pursue federal trademark registration.
Every state has a different process regarding its trademarks. FindLaw's Guide to State Trademark Information links to the processes and laws for each state.
Registering your business name with your state is not the same as trademarking your business name at the state level. While your state handles both these processes, they serve different purposes.
A business name (or trade name) is simply what you call your business. Registering your company name with your state provides legal recognition of your business entity. It also allows your state to identify your business for tax assessment and reporting. Registering your business name does not make it your intellectual property.
Every state has a different process to register a business name, with various means and laws to enforce those rights. FindLaw's Register Your Business Name: State Resources links to the business registration processes for each state.
This process can be time-consuming, as you must perform a clearance search for each state.
Trademark rights arising from use (rather than registration) are sometimes called common law trademarks. A common law trademark right occurs when you publish a unique name or phrase associated with any product or service that is not otherwise trademarked. Common law rights are limited to the particular geographic area where you operate.
While common law trademarks are free and offer automatic protection, you shouldn't rely on them solely to protect your intellectual property. To prevent another business or individual from claiming common law rights, consider formal trademark registration.
The first person to use the trademark in business or file an intent to use application has the superior right to use and registration. You can even trademark a business name or product name by using it.
A common law trademark right gives the owner many, but not all, of the rights of the officially registered owner of a ® trademark. For example, a common law copyright owner 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. To enforce ownership rights to a trademark, you should register your trademark with the USPTO.
Many libraries have a Patent and Trademark Resource Center (PTRC) administered by the USPTO. While PTRC staff are experts in using search tools to find patent and trademark information, they cannot provide legal advice.
Trademark applications may seem like simple form-filling but are complex legal processes involving multiple government agencies. Navigating the application process can be overwhelming, and it's to your benefit as an entrepreneur to get it right the first time.
Consider using a trademark attorney in your area for help registering your mark. An experienced attorney can help determine if you should register your mark at the state or federal level. They can also help you take legal action if necessary to protect your mark.
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