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What is a trademark and what does it protect?

What is a trademark?

A trademark is used to let people know the source of goods. Nike® is a trademark for athletic shoes.
A servicemark is used to let people know the source of services. Google® is a servicemark for various services.

On our website, we use “trademark” to indicate both trademarks and servicemarks, because that’s what most people use when talking about marks. A trademark can be one word or a few words. It can be a design, alone or with words.

Here are examples of some great trademarks other businesses own and use:

What do trademark rights protect?

Trademark rights allow you to stop other people from using your trademark to sell goods or services. Those rights also protect consumers because they can know the source of goods or services they’re buying. You can stop other people from using any trademark that’s confusingly similar to your trademark, even if the trademark isn’t exactly the same as yours.

What do trademark rights NOT protect?

You can’t stop someone from selling similar products using a different trademark. A trademark can’t protect an idea or an invention. The only way to protect an idea is to keep it a secret, but some ideas can’t be kept secret once they are being used. For example, the idea for this website isn’t a secret now that we’ve launched it. The only way to protect an invention is to get a patent. Getting a trademark to protect an idea or an invention is a waste of money because it won’t help with either of those things. Ever.

What’s a registered trademark?

A registered trademark has gone through review and publication at the United States Trademark Office (or some similar office in another country or region), found to be valid, then given a registration. Registered trademarks can use this symbol: ®

What’s a tradename? I can get one of those at the office of my state secretary of state and it’s really cheap. Isn’t that just as good?

Although “trademark” and “tradename” have 7 out of 9 letters in common, the similarities stop there. A tradename (also called an assumed name) is like a nickname for a business entity. Operating your business through an entity, like a corporation or a limited liability company, allows you to protect your personal assets from liabilities of your business. In order for that to work, you have to make sure that everyone knows you’re operating the business through an entity. That’s why business entities need stuff at the end of their names, like “Corp” or “Inc.” or “LLC”. If you want to put up a sign on the door that says something like “Joe’s Pub”, without the “Corp” or “Inc.” or “LLC”, then you need to let everyone know that “Joe’s Pub” is just a nickname for “Joseph P. Sanglovitch Libations Corp.” Registering the tradename “Joe’s Pub” with the secretary of state, does NOT create the right to prevent other people from calling their bar “Joe’s Pub.” It just doesn’t work that way.

I can get a copyright registration for $30. Maybe I should do that.

To quote the US Copyright Office: “Copyright does not protect names, titles, slogans or short phrases.” Copyright “protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture.” A copyright (whether registered or not) doesn’t give the owner the exclusive right to use a brand. It’s like buying homeowners insurance to insure your car. It may cost less, but it won’t actually do you any good if you get into an accident.

Can I have a trademark without a registration?

Yup. You can have a common law trademark. As soon as you start using a trademark to sell your stuff, you begin to have common law rights in that trademark. Trademarks with common law rights can use these symbols - TM (for trademarks) or SM (for servicemarks). When people say “I want to trademark that” they usually mean they want to register a trademark. That’s what we help with.

Do I even need a trademark registration?

You don’t have to register your trademark. Lots of businesses rely on common law rights and do perfectly well.

But, hey, there must be some reason that so many people get a federal trademark registration. I mean, there are, aren’t there?

Yes. There are good reasons. Here are a few:

  • Common law rights extend only as far as your commercial reach (just having a website that’s available everywhere doesn’t count). A federal trademark registration usually extends over the whole country. So if you’re operating a regional business and have hopes of expanding, getting a federal trademark registration will assure that you have rights throughout the country, even before you start selling there.
  • Having a registration (especially one that’s been around for at least 5 years) gets you “evidentiary presumptions.” That means when you go after someone for infringement, you don’t have to prove that you own the trademark and that your rights are superior to theirs. That doesn’t sound like a big deal, but it is. Ask any lawyer.

Once I file my application can I use the ®?

No. Sorry. You can use the ® only after you get a registration. During the application process, you should continue to use TM or SM. (Or, maybe start using one of those if you haven’t been using it so far.)