So you’ve decided on a legal structure for your new business – now what? The next step is legally protecting your brand to ensure it remains a unique part of your business’s public image. Your brand is your company’s identity, so it’s critical to secure it with a trademark, which prevents someone from improperly using your business name or branding. To get a trademark, you’ll need to file an application with the United States Patent and Trademark Office (USPTO).
However, doing so does not automatically mean your trademark will be approved. There are rules to follow and a required application fee. The information below can guide you and your business through the trademark process.
Brands can be trademarked for either current or future commercial use. Whether your application is approved, however, depends on several factors, including whether the name is distinctive. Other criteria to keep in mind include the following:
It is particularly important to trademark your business identity if it says something unique about your brand, like your commitment to eco-friendly business. However, it’s wise to understand whether your brand is even eligible for a trademark in the first place. The trademark process is time-consuming and costs money, so you don’t want to waste effort trying to trademark an ineligible idea. Review the USPTO’s rules and consider the above factors to get a sense of whether your application is likely to be approved before fully embarking on the endeavor.
Another thing to keep in mind: If you are a sole proprietor, you will need to register a DBA (doing business as) name before applying for a trademark. Since sole proprietors must legally use their personal name as their business name, this affords them the option of selecting a different name to conduct business under publicly. You can then use that alternative name to register for a trademark.
It’s no use trying to trademark a brand or phrase that has already been trademarked by someone else. Luckily, the USPTO maintains a database of trademarked terms called the Trademark Electronic Search System (TESS). A search in TESS will also pull up pending applications so you can see if another business is in the process of beating you to the punch. Checking this system is a great way to possibly avoid a potential rejection based on the “likelihood of confusion” – that is, your application is denied because your proposed trademark is too similar to another and would cause confusion in the marketplace.
What if your desired trademark doesn’t consist of words but rather a design? If you intend to register a trademark that uses an illustration instead of just a simple name, you can use TESS to conduct a design mark search. First, however, you need to obtain the applicable design code(s), which you can find in the USPTO’s Design Search Code Manual.
The catch: Even if you conduct a trademark search and don’t find any matches, your application could still be denied. Not every trademark is registered with the USPTO, so it’s not a foolproof safeguard.
Now comes the fun part: using the Trademark Electronic Application System (TEAS) to officially apply for your trademark license. The application is simple to fill out online, but be sure your information is accurate and complete, or else you could be wasting the filing fee. Application fees range from $250 to $500, so you don’t want to be rejected on a technicality and be out the money. You can pay the fee online by credit card, electronic funds transfer or an existing USPTO deposit account.
Once submitted, your form will go directly to the USPTO. Be aware that all information contained in your application (apart from payment information) will be considered public record, including your address.
If your company does any business internationally, keep in mind that registered trademarks are generally valid only in the United States. Once you have applied for a trademark in the United States, however, you may be eligible to apply for an international trademark under the Madrid Protocol. To do this, you must file an application with the international bureau of the World Intellectual Property Organization (WIPO). The USPTO can assist you in filing your international application, and the application will pass through the USPTO before it is forwarded to the WIPO.
Social media presents unique challenges in terms of protecting your own intellectual property and ensuring you aren’t infringing on someone else’s. Follow the best practices to prevent copyright infringement on social media.
Make sure you understand the difference between a trademark and a patent so you know which is right for your business. In some cases, your company may need both.
A trademark prevents potential competitors from copying or too closely mimicking your brand, which can help businesses differentiate their products from others and maintain the customers and profits they worked so hard to get. Registering a trademark also affords you more legal rights than operating a business without one. If your company is ever sued over its brand or if you want to file a claim against another enterprise, a trademark registration certificate can be vital evidence.
Jocelyn Pollock contributed to the writing and reporting in this article.