A trademark can be any distinctive sign, design or indicator used by a business (or other legal entity) to identify its products or services, and to distinguish them from those of competitors. When a trademark is used in relation to services rather than products, it is sometimes called a service mark.
A trademark is noted by the following symbols:
- ® (Registered trademark)
- ™ (Unregistered trade mark)
- ℠ (Unregistered service mark)
A trademark can be a name, word, phrase, logo, symbol, design, image, or a combination of these elements. Trademarks do not have to be registered, but in order to maximize your ability to prevent others from using your trademark it is best to register it. As long as you have an enforceable trademark, whether registered or not, you may initiate legal proceedings against any unauthorized use (known as trademark infringement). Successfully registering your trademark creates a presumption that your trademark is legitimate in the case you initiate one of these legal proceedings to enforce your trademark rights.
The registration process entails four steps prior to a trademark receiving its Certificate of Registration:
1) A business files an application with the United States Patent and Trademark Office (USPTO) to register their trademark(s). Most companies choose to use a trademark attorney to do this, but you can also do it yourself. If you do it yourself, be sure to read all guidance provided by the USPTO on filing the trademark. You will also have to pay an application fee.
2) A patent attorney working at the USPTO reviews the application to make sure it complies with all requirements, such as the requirement that the mark is not likely to cause confusion with a pre-existing trademark. If issues are found, the USPTO will require the applicant to address them before registration can be completed.
3) The trademark application is published for opposition. During this 30-day period, third parties may file an Opposition Proceeding to stop the registration. In such a proceeding, the case is brought before the Trademark Trial and Appeal Board to determine if there is validity to the opposition’s claim.
4) Provided that no third-party opposes registration during the opposition period, or any opposition is decided in the applicant’s favor, the trademark is registered as the property of the applying business. After a trademark has been registered and used consistently for at least five years, the owning entity may file for “incontestable” status. If this status is achieved and the trademark receives incontestable status then the trademark will have a heightened protection that can help the owning entity avoid (and potentially win) future disputes.
Before submitting a trademark application, applicants should search the USPTO database to determine whether another entity already claims trademark rights on your intended brand or logo (or something very similar). Failure to conduct a proper search could cause your business to suffer wasted time and effort if your intended trademark is already in use.