LEGAL DICTIONARY

Trademark

Trademarks are important tools for companies and businesses to protect their intellectual property. By claiming a brand or logo or registering an official trademark with the US Patent and Trademark Office (USPTO), organizations can safely and legally safeguard their image and reputation.

This article explains what trademarks are, what they can do for business owners and product providers, and how they can protect a company’s identity from misuse. We also look over how it is possible to trademark a phrase/logo/name to prevent infringement of intellectual property.

What Does Trademark Mean?

Fundamentally speaking, a trademark is a unique symbol or word(s) that can be used to represent the ownership of branded intellectual property. If the trademark is registered it is no longer possible for any other entity, individual, or organization to use the recorded words, symbols, or products during its usage without appropriate permission and consent.

Brands can affect how the public view certain companies. Therefore businesses rely heavily on their brand image. Trademarking the elements that visually and intellectually makeup that public persona can be highly influential on how they are able to protect that publicly perceived image.

For that reason, businesses and corporations usually use trademark symbols to ensure that phrases, logos, and other elements that make up a brand cannot be misused. This helps branded items have a positive and instantly recognizable effect.

To maintain a trademark the necessary paperwork and registration costs must be kept up to date as must the use of the mark on the product or item, otherwise, it will lapse. Many famous trademarks are instantly recognizable such as the Starbucks mermaid, the Coca-Cola “wave”, or McDonald’s “I’m lovin’ it” slogan.

A trademark can be used to cover many elements that are used to identify a business and it’s output. These include:

  • A slogan used by the company
  • A business’s logo
  • The name of a corporation or company
  • Product names
  • Symbols
  • Specific colors used by a company

Displaying any of the following symbols shows that a trademark is being used:

  • ™: The ™ sign allows companies to demonstrate that their trademark is claimed by an entity or individual.
  • ®: This symbol indicates that the trademark has been recorded and registered by the Patent and Trademark office.
  • ℠: Companies selling services rather than products can opt to use the service mark logo instead of the more common ™ symbol.

How to Register a Trademark

In order to register a trademark, it is necessary to record the item in question with the US Patent and Trademark Office (USPTO). This can be a fairly simple process as long as the correct requirements are met. To register a trademark you must follow these steps:

  • Check the USPTO records to ensure your item isn’t already trademarked
  • Indicate the type of trademark you are applying for and where it will be used (at this stage it is recommended to consult a lawyer for advice)
  • Complete the correct application forms for your item
  • Pay the registration costs (between $225 - $325)
  • Submit the application to the USPTO

Do I Need a Lawyer to Create a Trademark?

If you are domiciled in the USA and wish to register a trademark it is not obligatory to use a lawyer to do. Nevertheless, it is highly recommended to use a legal expert who understands trademark law to help you properly complete your registration.

On the other hand, if you are creating a trademark in the US and are domiciled abroad, it is obligatory to use a US-based attorney. It is important in this situation to use an expert who understands all the nuances of US trademark law, which may not be possible should you use an attorney based overseas.

Trademark vs Copyrights and Patents

Trademarks work quite differently to copyright and patents, although all three protect intellectual property in their various forms.

Generally speaking, trademarks work best for protecting visual elements or phrases that pertain to a company. Copyright is best used for art and other creative works, whilst patents protect industrial and manufacturing creations such as machines and inventions.

How Long Does a Trademark Last?

A trademark is valid for 10 years at a time. After this period has passed it must be renewed for a further 10 years. If the proper renewal process is followed, however, it can be used permanently with no time constraints.

Be aware, after 5-6 years of the trademark’s initial use, the USPTO requires the holder of any recorded intellectual property (marked with the ® symbol) to register an affidavit to indicate that the mark is still being used. If this is not done, the registration can be canceled.

However, the most important factor is that any mark should be in constant use. The application of a trademark means that no other party may lay claim to the claimed intellectual property until it ceases to be used or registration lapses.