How to Get a Trademark: A Complete Guide
You’ve created a unique, eye-catching, memorable name and brand for your business, products and services. There’s just one problem: right now, anyone else can use that name too, and you don’t want your inspiration and effort to go to waste. You need to protect your name and brand, and that means getting and filing a registered trademark.
We’ll walk you through everything you need to do to gather the right information, fill in the correct forms, file your trademark and have it granted. Trademarks are only applicable in the countries where you register them. The information here is based on filing a trademark in the U.S. with the United States Patent and Trademark Office (USPTO).
Decide If You Need to File a Trademark in the First Place
The term “trademark” is often used as a catch-all phrase for the various ways of protecting your business’s intellectual property. In reality, trademarks are very specific in what they do and do not allow. Before deciding if you need to file a trademark application, it’s worth understanding the type of protection you need.
Types of Intellectual Property Protection:
- Trademark — Protects the brand names and logos you use for your business, products and services. For example, the logo and brand tagline on the “Brilliant Blue Widgets” line of gizmos.
- Patent — Protects an invention. For example, the manufacturing design of the original blue widget.
- Copyright — Protects an artistic or literary piece of work. For example, the photographs of the original blue widget that you use on your website.
- Business name registration — Protects the name of your business in the state you form the business, assuming you’re creating an LLC or corporation. For example, you set up an LLC called “Blue Widget Manufacturing LLC” in Delaware.
Understand What a Trademark Protects
Getting a registered trademark means you have the exclusive right to use specific words, phrases and logos to identify your business, products and services. If another business or individual copies something you have trademarked, you can take legal action against them to prevent their usage.
Trademarks only apply to text or logos that are used for commercial purposes. For example, you can trademark the name of a product or business, but not something that doesn’t generate commercial value or income.
Realize the Importance of a Distinctive Trademark
You can’t trademark common, generic or descriptive names. For example, it’s very unlikely you would get a trademark for “Sweeping Broom” as that’s simply descriptive. Instead, a trademark needs to be distinctive and unique.
If your trademark isn’t unique, it’s likely to be rejected, as there may be confusion with the trademark you want to register and an existing trademark. This confusion can happen if another trademark already exists that is similar to yours and they are used for similar goods and services.
When you file for a trademark, you will need to specify the types of products or services you will use the trademark on, and the USPTO will decide if the trademark is both distinctive and non-confusable.
Select the Trademark You Want to Register
You can only trademark a specific, distinctive word, phrase or logo. Not every trademark is registrable, and not every trademark is legally protectable. The USPTO recommends that:
“Before filing a trademark/service mark application, you should consider:
- Whether the mark you want to register is registrable, and
- How difficult it will be to protect your mark based on the strength of the mark selected.”
When you’re selecting and defining your trademark, you’ll need to pay attention to:
- The format of the trademark, which could be a standard character mark, a stylized mark, a design mark or a sound mark.
- The goods and services that will use the trademark, as this can affect whether you will be granted the mark.
- Your “filing basis” — whether you are already using the trademark for commercial purposes, whether you intend to use the trademark, whether you are already using the trademark elsewhere in the world and whether you have priority due to a foreign application.
Search the Trademark Database to See If the Mark You Want Is Already in Use
A trademark needs to be unique in the context where it’s used, so it’s important to understand if a similar trademark for related goods and services already exists. The USPTO has a searchable database called the Trademark Electronic Search System (TESS) that you can use to see if your trademark or a similar one is already in use.
Search for your planned trademark and close variants to see if there’s anything already registered. If there is, it’s possible your trademark may be denied.
Gather the Information You Need and Apply for a Trademark
The USPTO allows you to apply for a trademark online, and you will need to pay a fee for processing the application. This fee is payable whether your trademark filing is successful or not. The USPTO provides some excellent resources on what you will need to provide.
Once you’ve applied, you can monitor the status of your trademark through the Trademark Status and Document Retrieval (TSDR) system.
Have Your Trademark Granted or Denied by the USPTO
Once you’ve been through the trademark process, the USPTO will decide whether to grant you the trademark. During or after this process, there may be objections to your use of the trademark, and you may be asked to provide further information.
Assuming you can overcome any objections raised by the USPTO or others, you will be granted the trademark.
Maintain Your Trademark
Once the trademark is granted, you will need to file periodic maintenance documents to continue holding the trademark.
Do You Want Help Getting a Trademark?
Finding out if a trademark is available, gathering all the information together and filing with the USPTO can be a difficult and complex process. We can help. Our Trademark Name Search and Registration service provides:
- Legal counsel from an experienced trademark attorney
- A thorough search of existing trademarks
- A registered trademark with the USPTO
- Handling all correspondence with the USPTO until the name is approved
Use our trademark service for your peace of mind.