What is a Trademark and How Does it Work?

A trademark is defined as “a word, phrase, symbol, or design, or a combination thereof, that

identifies and distinguishes the source of the goods of one party from those of others” (USPTO)

Trademarks are an essential part of your business.  They represent your goodwill, your reputation, and they’re how people can tell the difference between the products and services that your business offers and what others offer.

A number of things can serve as a trademark, and these can include:

  • brand names
  • company names
  • product names
  • domain names (if they label a product or a service)
  • images
  • symbols
  • logos
  • slogans and phrases
  • color combinations
  • product designs
  • product packaging

Trademarks are considered intellectual property, identifying a source, sponsor, or principal of a particular good or service.

Through the use of trademarks, we, as consumers, are able to differentiate one product from another as they influence our choices and purchases. For businesses, trademarks serve to distinguish and identify goods and services produced either sold or given away. (Lumen)

Why Should I Register a Trademark?

Thanks to the internet, business, in general, has been increasingly competitive. If you are first to use a particular trademark, right away you acquire rights to that mark, allowing you to sell goods and services under your good name.

Now, you are not compelled to register your trademark. But it is strongly encouraged for you to do so for the following reasons:

  • Registered trademarks create a legal presumption that you are the owner of the mark.  Otherwise, that’s something that you are going to have to prove if you wanted to enforce your registration either in or out of court.
  • Registered trademarks also give you a legal presumption of the exclusive right to use your mark nationwide with the goods and services that are identified in your registration.
  • Federal registration is going to give you a presumption of rights throughout the entire United States and its territories. In fact, the United States Patent and Trademark Office (USPTO) puts others on “constructive notice” that you are the owner of the mark.
  • Being listed in the USPTO’s database means that others considering potential marks can find your marks when they search the database to see if their mark is available.
  • Federal trademark registration also gives you the ability to record your trademark with U.S. Customs and Border Protection. This means that you now have greater protection against importation of infringing or counterfeit foreign goods.
  • You have the ability to use your U.S. trademark registration as a basis for applying for trademark registrations in many foreign countries.
  • Federal trademark registration means that you have the right to use the coveted “R in the circle” symbol with your mark.

The investment to register a mark is minimal compared to the potential cost of not registering and compared to the potential benefits registration will bring to your business. (LegalZoom)

Are Copyrights and Patents the Same as Trademarks?

The short answer is: no. They all protect a different type of intellectual property,

  • Trademarks protect brand names and logos (among other things) used specifically on goods and services.
  • Copyrights, on the other hand, protect original artistic creations (such as literary work, songs, films, or other creative pieces)
  • Patents are used to protect inventions in particular.

So, when you invent a brand new mobile phone, for example, you will need to apply for a patent to protect your invention. If you plan to sell it and create a brand around that invention, you now have to register a trademark to protect your mobile phone’s brand name. Finally, you’ll need to file for a copyright for the TV commercials you’ll be producing to advertise your new phone.

Does a Domain Name Registration Count as a Trademark Registration?

No, it does not.

Securing a domain name might mean you have claimed a web address, but it might not necessarily mean that you have trademark rights in that wording. As a matter of fact, if you register a domain name that includes the trademark of another party, you may have to surrender that particular domain name.

However, a domain name can function as a trademark (and can be registered as such), so long as it is used in a way that identifies the source of particular goods and services (such as in the case of Amazon.com, for example).

To actually obtain the benefits of a federal trademark registration, you must apply for one and get a registration through the USPTO.

A Final Word About Trademarks

The United States Patent and Trademark Office is the main government agency that handles all things related to trademarks and has a lot of useful resources for small business owners and entrepreneurs seeking to register their own marks.

Securing a trademark is critical to the success of your business. While not required, the benefits of investing in registering for one far outweighs not having one.

For more information on trademark-related issues, such as selecting a strong trademark for your business venture, what sort of help you have access to when working on registering your mark, and other considerations, the USPTO has prepared a video primer just for you.

Disclaimer:

*In no way is Radio Law Talk or its affiliates or hosts giving legal advice.  Seek legal counsel. Radio Law Talk does not guarantee the full accuracy of these blogs as most situations are unique unto themselves and some or all of these blogs may not apply.  Laws constantly change or may be interpreted differently.  Each state laws may differ, along also with federal laws.  Do not use this blog as advise in any way.

**Radio Law Talk does not guarantee the accuracy of all detail research.Above is the written research performed prior to one of the latest shows. Neither Radio Law Talk nor its hosts guarantee its complete accuracy as it is a “working script” only and as such is used as a base foundation of the legal topics discussed. Many additions and changes made during and before the broadcast.” This is for informational purposes only and not to be relied upon as all of the issues or law for the subject topic. Seek legal counsel for all your legal needs.