Your business is exactly that: your business. You dreamed up an idea, created the brand, and have begun building something you can be proud of. But wait, what’s this? Another small business has come along and stolen your brand name, ripped off your idea, and is calling it their own.
While your business is something personal and special to you, it’s also a legal piece of intellectual property. This means it needs legal protection. This is where a trademark comes in.
What is a trademark?
The first steps to take when starting a business are creating a business name, designing a logo, and possibly even coming up with a slogan. Before you publicize any of this, you should take steps to protect your name and logo.
A trademark does exactly this. According to trademark law, a trademark protects the brand, logo design, and business entity as a whole from being unlawfully imitated. This means protecting the very thing you’ve built. You also need to make sure your business and brand don’t interfere with other trademarks, which could get you into a lot of legal trouble.
Copyrights are often confused with trademarks. Copyrights apply to music, movies, television, and other forms of art. So unless you’re in the business of creating original art, you likely don’t need to concern yourself with a copyright.
Does your business need a trademark?
A trademark is a good idea to protect your business, but there’s no legal requirement that states you need to have one.
Registering your business with your secretary of state is enough to prevent anybody else within your state from registering a business entity with that same. But the other 49 states? Those are still up for grabs.
That’s one of the biggest benefits of securing a trademark for your business. If you eventually choose to expand to states outside your own, you won’t run into problems registering your business there.
There are a number of other benefits to getting a trademark, including:
- Protecting your brand and business from imposters
- Preventing confusion among your customers
- Increasing your confidence and sense of security
How long does it take to get a trademark?
Trademarks are issued by the United States Patent and Trademark Office (USPTO), and it’s smart to apply for one right after filing your business registration paperwork.
The length of the process to get a trademark can vary. In general, you can expect the entire trademark process to take somewhere from 12 to 18 months. This isn’t a quick task, as it takes a while to make it through all the review stages and officially receive your certificate of registration.
How much does a trademark cost?
Cost is another aspect that can vary depending on the specifics of your trademark. These specifics include how many classes (think of these as categories) of goods or services you’re applying for, as you’ll pay a filing fee for each class. Hiring an attorney to help with the trademark process will add legal fees to the overall cost as well.
As far as the actual trademark fees go, you’ll pay an initial application fee. The exact price will depend on which filing option of the Trademark Electronic Application System (TEAS) you choose. Here’s the difference, explained by the USPTO:
TEAS Plus: More requirements up front, but a lower fee per class of goods/services
- $250 per class of goods/services
TEAS Standard: Fewer requirements up front, but a higher fee per class of goods/services
- $350 per class of goods/services
More information about each of these options is provided below in Step 7. But for now, just know that they have different prices and qualifications attached to them.
Finally, take note that you might also need to pay additional fees for your application. This occurs under certain circumstances, such as if you need more time to show use of your trademark.
How to get a trademark
Trademarking is clearly important. Unfortunately, getting a U.S. trademark is an in-depth and lengthy process. But it’s not impossible to do on your own.
Here is the full application process for registering your trademark. Trademark registration in the U.S. is rather complex, so be prepared to either hire an attorney or dedicate a lot of time to thorough research.
Step 1: Determine whether you need a trademark
A trademark should be a sign, design, sound, or expression that’s representative of your brand, product, or business. Be sure you’re not confusing it with a copyright or patent.
Copyrights apply to artistic creations. Patents apply to products, giving the inventor of the original product legal protection in the event someone tries imitating it. If your business is selling something original, you’ll also want to pursue patents to ensure your goods aren’t ripped off.
Step 2: Identify your mark
Trademarks aren’t a one-size-fits-all solution for protecting your intellectual property. There are different types of marks for different types of intellectual property, with each type offering more specific protection.
Determine which of the three mark formats applies to your desired trademark:
- Standard character mark: This protects any combination of words, letters, or numbers without consideration of the font or style (for example, the name of a business or a slogan). It provides broad rights for use in any form of presentation.
- Stylized/design mark: This applies to a mark with a design you’d like to protect (for example, a logo). The design may have letters or not.
- Sound mark: This is for a tune or jingle that’s representative of a brand. For example, the MGM roaring lion sound falls under a sound mark.
No matter what kind of business you’re starting, you’ll almost always need a standard character mark and design mark. This is because your business will require a name and some kind of logo.
Step 3: Decide if you need an attorney
Do you need an attorney to help you in the process of researching, filing, and protecting your trademarks? Technically, you don’t—it’s possible to go it alone. But it might be a good idea for various reasons:
- While you can search for competing trademarks in the Trademark Electronic Search System (TESS) database, a trademark attorney can conduct a more expansive search. Your attorney can identify potential problems with your mark and inform you whether you should apply at all.
- Filing for a trademark is a legal process. It has legal requirements and deadlines, and if they’re not met, your money will not be refunded. It may be worth the flat fee many attorneys charge to file correctly the first time.
- If an examining attorney representing the USPTO sends you communication, you may need the assistance of an attorney to respond properly.
An attorney can help you manage all of the pursuant steps on this list and offer any additional legal advice you may need. For example, does a T-shirt with your brand require a trademark or patent? An attorney will be able to give you a clear answer to those types of questions without you investing hours in bleary-eyed Google searches.
Step 4: Show ’em the goods
Your logo, name, or jingle will represent a particular good or service, and you must select a legally acceptable identification for your goods and services. This means choosing a name that doesn’t infringe on another trademark and is not similar enough to cause brand confusion.
This is an important step, as doing this improperly may prevent the registration of your mark. Here are some tips for properly identifying your mark:
- Goods versus services: Do you sell goods (actual products, whether physical or digital) or provide services (some form of assistance or consulting)?
- Properly define your goods or services: What are the goods or services you provide? Search the Trademark ID Manual here by entering relevant keywords in the search box to find your product or service. Search under “Basic Fields” to find the appropriate ID for your service or good. If you do not find it, you will have a space to describe your product or service when you’re applying with the TEAS Standard form. (This is not the case on the TEAS Plus form; see Step 7 for details.)
Still confused? Watch this in-depth USPTO video, which explains the identification process.
Step 5: Ensure you’re not copying anyone
This road goes both ways. You should always check to see whether there are other companies, people, or brands out there whose mark has a high “likelihood of confusion” with yours. This is where the trademark database comes in.
It’s important to remember that it’s not just about searching for people with the same mark or name, but also uncovering those that are similar. The USPTO may turn down your application if someone has already registered or applied for a mark that is the same or similar, and it’s used for related products or services. The last thing you want to do is infringe on a trademark.
Searching the TESS database can be a little overwhelming at first. Take note of the following functions, as they’re likely what you’ll need when looking for other trademark owners:
- Basic Word Mark Search: This is fairly simple and allows you to search for business names and slogans, not designs.
- Structured Word or Design Mark Search: This function allows you to search for both words and designs, using the Design Code Manual to find designs.
- Free Form Search: This is a more advanced search based on Boolean logic. It has several search fields and could be difficult for beginners to use. For a more in-depth guide to searching for marks, check out the TESS Help Menu.
During your trademark search you may be disheartened if you come across a trademark similar to the one you want to file. Don’t lose hope—trademark rights don’t last forever.
Federal trademark law requires you to file for a trademark renewal by the end of the sixth year. Once the 10th year passes, the trademark is no longer valid. Check the trademark status in the database and see if it’s alive or dead. If it’s dead, you could be in luck! If it’s live, it’s time to pivot and figure out a new trade name to register.
Keep in mind that not everyone chooses to register their trademark with the USPTO, so not all relevant results will appear in TESS. However, it’s still important that you check for unregistered marks since the owners often retain the rights to them whether they’re registered or not. (Again, hiring an attorney may be extremely helpful in this regard.)
Step 6: Know your basis for filing
Before applying, you should know your basis for filing the mark. There are two options:
- Use in commerce
- Intent to use
Essentially, you’re confirming whether you’ve used the mark in sales and products already or intend to use it (meaning your product or service is market-ready). “Statement of use in commerce” must be established with an example in which the mark was used; “intent to use” will require an additional form and fee.
Step 7: File the trademark application
As mentioned earlier, TEAS Plus has a lower filing fee ($250 per class of good or service), but it has stricter requirements than TEAS Standard. To use the TEAS Plus form, you must:
- File a complete form
- Select your goods or services from the list on ID Manual (described in Step 4—there is some room for customization, but you cannot write a “free-text” entry describing your product as with TEAS Standard)
- Pay full fees at the time of filing
- File later communications regarding the application through TEAS
- Receive all communications via email
The TEAS Standard form has an application fee of $350 per class of good or service. It is your option if you can’t satisfy the TEAS Plus requirements. Here are the fee requirements and payment options for both TEAS Standard and TEAS Plus.
When applying, keep in mind that:
- The filing process may have a few strict deadlines.
- Your filing fee will not be refunded.
- Your data will become public once filed.
Step 8: Sweet success
Keep in mind that applying for a trademark doesn’t result in instant gratification. The review process will take several months.
If the USPTO doesn’t have any objections to your registration, you will receive a notice of publication with the date of publication. After it’s published, any party who feels they may be damaged by your mark will have 30 days to take action.
If no opposition is filed (or if it fails), you enter the next step of registration, and a certificate of registration will be issued. Within about 11 weeks the USPTO should register the mark and issue you a registration certificate.
If you filed with an intent to use, you will receive a notice of allowance. You will then have six months to begin using the mark in commerce, or you’ll need to request a six-month extension.
Even after your application is approved, you must still regularly file maintenance documents to keep the registration live. Your trademark isn’t a “set it and forget it” type of thing.
Making your mark
With your trademark approved, it’s time to make some waves. Set up your domain name, put your company name on your business cards or other branded items, and shout about your business from the rooftops. You’ve earned this moment, so bask in it.
Remember that your trademark will expire, so mark your calendar and set reminders for the fifth year. You’ve invested the elbow grease and made it this far, so the last thing you want is to lose your trademark.
Now, go make your mark on the business world.
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