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What is a trademark and should you register it?

Every business needs to protect its assets. One piece than many business owners often overlook is their intellectual property, such as a trademark. A trademark can be a business name, logo, or slogan, which provides value to the company and allows customers and consumers to identify your business, products, and services.

A trademark is a word, phrase, symbol, or design that identifies and distinguishes a business from others offering products or services in the same area of business. In the United States, you acquire automatic “common law” rights as soon as you use your trademark for purposes of marketing or conducting your business. However, to receive the full protections of federal trademark law, you must register your trademark with the U.S. Patent and Trademark Office (USPTO).

For some small businesses providing goods or services to a very local consumer base, the common law trademark protections may be sufficient. The common law protections may allow you to stop others from using your trademark in conjunction with similar good or services, but only in your immediate geographic area. To obtain broader rights, registering your trademark is necessary.

A registered trademark provides a nationwide and exclusive right to the use of your trademark in conjunction with the goods or services you provide. You will have the right to enforce your trademark by filing an infringement suit in federal court against another company using the same or similar name. Registration of your trademark gives you the right to use the registered trademark symbol (®) behind your business name, which puts others on notice of your claimed trademark rights. Registration with the USPTO can also be the first step in obtaining trademark rights in other countries.

The USPTO will only approve a trademark application if the trademark is distinctive and not likely to cause confusion with an existing trademark. The easiest names to trademark include names that are made-up, such as “Nike” or “Clorox,” or names that suggest a product or service without describing it, such as “Lyft” or “Netflix.” Descriptive business names are the most difficult to trademark. Applications for a trademark that is descriptive of the goods or services, or geographically descriptive of where the goods or services come from, are typically rejected.

After a trademark application is submitted, the USPTO takes several months to review and determine whether the application meets the requirements for trademark approval. If your application is approved and a registration issues, your trademark registration will last as long as you continue to use the trademark, provided that you file the required maintenance filings with the USPTO during that time. While it is not required that an attorney file the application, the USPTO strongly encourages applicants to hire an attorney who specializes in trademark law.

Learn more about our intellectual property practice and how our attorneys can help.

June 22, 2021

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