As an entrepreneur, you work hard to help your business grow, thrive, and succeed. With success comes the transition to becoming a full-fledged brand. As you create and grow your business and your brand, it’s time to pay attention to trademarks.
Understanding trademarks is an integral part of managing and protecting your business. There are several reasons to pursue this protection of your intellectual property (IP), but it can feel confusing to try it on your own.
At Angie Avard Turner Law, LLC, we help entrepreneurs protect what they create through contracts, NDAs, copyrights, trademarks, and more. Reserve your time today to get the legal help your work deserves.
What Does a Trademark Protect?
Many people confuse trademarks and copyrights or mistakenly use the terms interchangeably. The United States Patent and Trademark Office defines a trademark as “any word, phrase, symbol, design, or a combination of these things that identifies your goods or services.”
Basically, a trademark applies to the pieces of your brand that make you identifiable to your customers. Often, businesses use trademarks for items such as their names, slogans, and logos. Nike swoosh, anyone? That symbol is probably one of the most recognizable trademarks in the world.
If you establish a service rather than a tangible good, you will use a service mark (SM) instead. It offers the same protection as a trademark.
To guard other intellectual property such as photographs or songs, you use copyright rather than a trademark. Most businesses need both of these to provide the biggest amount of protection.
With a registered trademark in place, you have legal protection for your IP anywhere in the US. That is, if someone tries to use your design, logo, name, or any other trademarked property, you have legal recourse against them.
Trademarks Are Not Just for Famous Brands
Many entrepreneurs assume that trademark protection is not for them. They think that only multi-national companies need that type of safeguarding. But you do not need to be at a Nike level of business to get a Nike level of protection.
Any phrase, design, or symbol that identifies your brand deserves protection whether you sell at a local farmers market or in a national chain of stores. As I remind my clients all the time, if it’s worth creating, it’s worth protecting.
Understanding Trademark Registration
There are a few different levels of trademark protection businesses can utilize. The simplest method is to start using the trademark! You own the trademark (™) once you start using it, even if you haven’t registered it federally. In the US, we have a “first-to-use” basis for establishing trademarks.
This common law trademark has significant limits, however. It generally only applies to your geographic area, so you risk someone infringing on your IP if you begin to sell in other cities or states.
The pandemic brought this fact to light for thousands of entrepreneurs who suddenly needed to shift their businesses to an online platform. Instead of only having a local customer base, they quickly had a national audience.
This pivot helped grow a lot of businesses. But it also sped up the need for trademark protection since an expanded reach opened the door to more risk of infringement. Understanding trademarks suddenly became a necessity for many entrepreneurs.
To receive the full legal protection possible, you need to register your trademark with the federal government. Once this process is complete, you can use the circle R (®) designation. This mark is only for federally registered trademark holders.
Getting your trademark registered isn’t overly complicated, but it can be a long process, up to 18 months. With the backlog in the courts during the pandemic, it may take even longer, so it’s wise to get started right away.
The best time to protect your intellectual property is right now. If someone else does it first, you will miss out.
Depending on the application you use, it will cost either $250 or $350 plus attorney fees to register your trademark with the government. In the long run, this is a bargain price for the level of financial protection it can provide. Working with an IP attorney to accomplish this is crucial so that you don’t have errors that could stall or negate your trademark application.
Can Everything be Trademarked?
Given the nature of branding, many things are eligible for a trademark. Did you know that even smells and sounds can receive this protection under the right circumstances? It’s true!
But there are limits to the legal use of trademarks. In general, a mark does not apply in the following situations:
Direct quotes from religious texts
Widely used phrases or messages such as “Made in the USA”
Anything that is too similar to another existing trademark
There are varying levels of protection under the so-called “spectrum of distinctiveness.” That is, the more unique and distinct something is, the more likely you can successfully trademark it. The five categories in this spectrum are as follows.
Generic Trademark
Generic words or phrases, such as “hamburger,” fall under the category of a generic trademark. They never get protection.
Descriptive Trademark
Naturally descriptive words or phrases, such as “juicy grilled hamburger,” fall under descriptive trademarks. They can sometimes get trademark protection, but there are extra hoops the owner must jump through to make that happen if it happens at all.
Suggestive Trademark
Suggestive trademarks generally apply to made-up words that sound very descriptive. A great example is the sunscreen Coppertone. If technology is more your thing, consider Microsoft or Netflix. These terms all received trademark protection.
Arbitrary Trademark
An arbitrary trademark uses a real word or term that has no bearing on the product or service. The Apple name and logo are perfect examples of this category. A piece of fruit with a bite out of it doesn’t have anything to do with their products.
Fanciful Trademark
A fanciful trademark is an invented word that doesn’t represent anything other than that company. Google and Yahoo are great examples of this type of mark. The more singular the intellectual property is, the easier it is to claim trademark protection.
Items that are “suggestive,” “arbitrary, “ or “fanciful” have the best chance of being granted a trademark. Assuming there are no other marks that are too similar, they will likely move to the next step of the registration process.
Protecting Your Work is Essential to Your Success
What you create in your business has value. Trademarks and copyrights are crucial to protecting that value and all the effort you’ve put into building your business. However, understanding trademarks and other IP concerns can make a lot of entrepreneurs feel overwhelmed.
But with an expert on your side, you can safeguard your hard work and your property without stress. At Angie Avard Turner Law, LLC, our passion is helping business owners do just that. Schedule your time to talk, and let’s get you all the protection you deserve.
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