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Trademark law is all about brand protection.
What is a trademark?
A trademark (or mark for short) is a distinctive word, phrase, logo, or graphic symbol that is used to identify the source of a product or service and distinguish your products or services from someone else’s.

When you think about trademarks for your business, think about branding. What name do your customers or clients recognize (i.e. Nike, McDonald’s, Apple)? How important is your logo for building your brand identity (i.e. Nike’s swoosh symbol, McDonald’s golden arches, Apple’s...well, apple)? Do you use any slogans that, when customers hear them, they should immediately think of your company (i.e. Just Do It, What’s in Your Wallet, Because You’re Worth It)? 

Trademark law protects your business name, logo, or slogan by preventing others from using a “confusingly similar” trademark on “related goods or services” anywhere in the country.  

What is the difference between a trademark and a copyright?
Trademark law is all about protecting consumers by distinguishing your goods and services from those of your competitors. The Copyright law protects original works of authorship, including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture. In simple terms, trademarks protect brand identity; copyrights protect content.

How do I trademark my name/logo/slogan?
  1. Conduct a thorough trademark search to determine whether your proposed mark is confusingly similar to marks that have already been registered. A Google search is not enough. Checking the USPTO database for exact matches is not enough. 
  2. Submit a trademark registration application with the USPTO and pay the filing fee. Remember, the USPTO will not refund your application fee if your application is rejected, which is why the trademark search is so important. 
  3. Wait for the USPTO to assign an examining attorney to review your trademark application. The examining attorney runs a number of searches in the Trademark Electronic Search System (TESS) to look for "confusingly similar" marks that have either already been registered or have priority over your application. 
  4. If the examining attorney does not find any issues with your application (or the issues are resolved), then your trademark will be approved for publication. Publication gives the general public 30 days to object to the registration of your trademark (or request an extension of time to file an objection). 
  5. Assuming there are no objections (or you successfully overcome any objections), then the USPTO typically issues the registration certificate about 11 weeks after publication. 

(Note: There is an additional step for what are known as “intent to use” trademark applications. These applications require additional filings and fees and take longer to approve.)

Registering a trademark with the USPTO is a complex legal proceeding. The entire process can easily take 8-12 months or longer if the examining attorney or third parties raise legal objections. 

Should I trademark my business name if it’s already registered with the state? 
If you have already registered your LLC or other business entity, then you may be wondering whether you should also register your business name as a trademark. Creating a business with the Secretary of State only protects that name within the state. So if your business is Acme, LLC, then the Ohio Secretary of State will not allow another business to register under the name Acme.  (However, the Secretary of State’s standards is much lower than the standards that apply to trademark registrations. For example, the Secretary of State would allow someone to register Akme, LLC.)

By registering a trademark with the U.S. Patent and Trademark Office, your trademark is protected nationwide. (And while the Ohio Secretary of State would allow a competitor to register, Akme, the USPTO would not because Akme is confusingly similar to Acme.) If your business is not limited geographically, then it’s important to register your business trademarks with the USPTO. Read more about Unregistered Trademarks. 

In addition to having the exclusive right to use the trademark nationwide, registration provides a number of other important benefits:
  • Registration creates a legal presumption that your business owns the mark. (FYI: The idea of mailing something to yourself to prove when you created it is an urban myth. If you really want to prove that you own it, then you need to register the mark.) 
  • Registration puts the public on notice that you claim ownership in the mark. It’s not a defense to a claim of trademark infringement for someone to claim that they didn’t know about your registered trademark.
  • Only federally registered trademarks are permitted to use the symbol ®. (But feel free to use the TM symbol.)
  • Without registration, you cannot sue someone else for trademark infringement in federal court. Without getting into the nuances of which courts have jurisdiction over what cases and when, suffice it to say that without registration, the courts are extremely unlikely to hear your case.
  • Registration allows your business to register with Customs and Border Protection to prevent the import of infringing goods from overseas. And if you do business overseas, a U.S. registration can be used as the basis for obtaining registration in foreign countries.

How long does trademark protection last?
Trademark protection only applies if you continue to use the trademark in commerce. If you stop using the trademark to sell your goods or services, then you can lose your trademark rights. 

In addition, you must file certain trademark maintenance paperwork on a regular basis. These filings are first due between the 5th and 6th anniversary of your trademark registration, and then every 10th anniversary. 

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