Breaking Down The Basics
WHAT IS A TRADEMARK?
A trademark is any word, phrase, symbol, image, orcombination that identifies and distinguishes the good or service of one party from another. The United States Patent and Trademark Office (USPTO) accepts trademarks such as brand names, slogans, symbols, and logos.
For your trademark to be accepted with the USPTO you wouldneed a strong mark. Right now, you are probably wondering what a strong mark is. A strong mark is suggestive, fanciful, or arbitrary. You are probably still wondering what the heck this means… Think of these distinct brand names like Pepsi,
Exxon, Polaroid, and Coppertone sunscreen. All of these names are considered a strong mark due to their creativity and ability to set themselves apart from their competitors.
A weak mark is descriptive or generic. This includes tryingto trademark the word “creamy” when describing yogurt or “bagel shop” for a
bagel shop. The stronger and more creative the mark is, the more likely the
USPTO will accept it. Trademarks have the ability to protect a brand andentrepreneur of any size. They are a highly accessible tool to legally protect
your idea and vision!
WHAT CAN A TRADEMARK DO?
The United States Patent and Trademark Office describes atrademark ability as:
- Identifies the source of your goods or services.
- Provides legal protection for your brand.
- It helps you guard against counterfeiting and fraud.
By utilizing federal registration, it provides an exclusiveright to use the trademark around the United States. This means it will be listed in the USPTO’s database allowing others to avoid choosing a trademark that is too similar to yours. This means that being the applicant it allows you
to be the owner. This prohibits any miscommunication and further protects your brand's
A trademark gives the mark owner the right to bring legalaction concerning the trademark in federal court. This is just another way trademarks can help guard against counterfeiting and fraud.
HOW WOULD A TRADEMARK HELP MY BRAND?
Let us look at a common example. You are a content creatorwho does a lot of sales out of Instagram by posting t-shirts with a brand logo and directing them to the link in your bio to purchase. Your business has begun to gain a lot of traction and then all of a sudden, you come across a TikTok where
an entrepreneur is advertising the EXACT same t-shirt logo and selling it as her own!
As stressful as this situation is, it is not uncommon. Manycontent creators and entrepreneurs have had this happen to them time and time again. Thankfully, the use of a trademark for both your logo and brand name can give you the legal protection and authority to stop other people from creating
counterfeit goods. Being a mark owner can ultimately help grow your business.
Creating a trademark can also provide additional revenue foryour brand because this trademark creates an intellectual property asset that can be sold or licensed for others to use. It gives you the opportunity to work with other businesses that want to sell your product using your brand name. Now
you may be wondering, do people really do this? The answer is yes! Major sports leagues like the NBA, and MLB, rely on licensing revenues of their team logos in video games, and on clothing. The vendor keeps part of the profit, and the sports league earns money in exchange for permitting the use of their mark. It’s a win-win!
HOW DO I KNOW IF I CAN GET A TRADEMARK?
- Use in commerce
- Be distinctive
There are only TWO simple characteristics your trademark needs to accomplish. For a product to be in the stream of commerce that means themark or logo must be placed on any good you are selling. It could be on the container, any display associated with the goods, or on the tag, or label. This
means the logo could be placed blatantly on the front of the product or placed on the tag of the shirt. Now that the logo is on the good, it must actually be sold or transported on the market. If the logo is somewhere on the product thatn is being sold you are good to go!
WHAT IF I HAVEN'T COMPLETED OR USED MY MARK IN COMMERCE YET?
Thankfully you are not alone in the question. Many peoplehave these great business ideas but may not be in a financial position at the moment to make these ideas come to fruition. The USPTO sees this problem and offers a trademark application on an intent-to-use (ITU) basis. As long as you have a good faith intention, or a strong desire to actually make these ideas a reality, then you can register your trademark or service mark with an intent-to-use filing basis.
Now you may be wondering, why bother making this applicationearlier and why not just wait until I am ready to start my business? Filing an ITU application comes with advantages that those who wait, do not get. Filing early gives you an earlier application filing date than a possible competitor for the mark. As long as you file the trademark in good faith this will give you an advantage over the competitor to make sure your mark has priority over someone else if a legal problem could happen.
Maybe now you are thinking this sounds pretty cool but howam I supposed to show a good faith intention to use the mark? When you file this application, you will have a sworn statement indicating your intention to use this mark in commerce. It is important to document your efforts to start
your business by listing the goods or services you plan to offer.
After the filing of this application, you will have 6 months before you must show your product is in the stream of commerce by filing a statement of use. Let's say after 6 months, you are still not ready to put the product or service on the market you may file an extension request. You can file up to four more extension requests over consecutive 6-month extension periods. Then you must file your statement of use or else your mark may be abandoned.
If you are offering a service, the use of the trademark mustbe in connection with the sale or advertising of the services, and the services must be done in commerce. This could be the profile picture on your Instagram page, or a logo featured on all of your content posted on social media. Once the mark is being used in the sale or advertising of your services, the services must actually be getting done. If your mark is in correlation to a nail salon, then you must have started having customers visiting you for a manicure!
In order to be distinctive, it must be a mark that quicklyand clearly identifies you as the source of your goods or services. The mark must be creative or unique and has the ability to set yourself apart from your competitors. An example of a creative mark could be the swoosh seen on many athletes' sneakers; this mark immediately tells the shopper about the brand. The logo also sets itself apart from market competitors such as Adidas or New Balance.
If you are someone looking to protect your brand’s identity, we are here to help! Here at OMI Legal, we provide trademark packages that can help you protect your business. Book a free call below or reach out at firstname.lastname@example.org!
Written by: Samantha Schultz