A trademark is something that easily identifies the source of a product. It can be a name, word, symbol or even a color or style of packaging (these last two are sometimes called trade dress) that distinguishes your product from the same or similar products offered by other companies. A servicemark is the same thing applied to a service instead of a product. Many people use the term trademark to refer to both products and services.

Establishing a trademark prevents other companies from using a mark similar to enough to yours as to cause confusion for customers. It does not prevent them from offering the same goods or services, so long as they do so under a different mark.

Getting Your Name Trademarked

Simply using your mark in a business setting is enough for you to claim rights to it. You may also be able to use the "TM" or "SM" designations to show that you are claiming the mark. Some local or state laws may restrict use of these designations, so be sure you check before using them.

If you would like to make it more official, you can register your trademark with the U.S. Patent and Trademark Office (USPTO), especially if it's used in interstate or foreign commerce. Some states also register marks. Federal registration of your trademark provides a stronger legal presumption of ownership. It also entitles you to use the federal registration symbol ® for the specific goods and services listed in the registration.

Before registering with the USPTO:

  • Make sure your mark is eligible: A trademark has to identify a commercial product and appear on the product or its packaging. To get a service mark, you have to use it in advertising or display it during the sale of your service.
  • Check to see if anyone has already registered your mark: You can do a free search on the USPTO's website.
  • Choose your mark's format: A standard character format uses regular words, characters or letters; font, color or other design elements don't matter. A design format has a stylized appearance that is integral to the mark.

You can file a paper application or file electronically on the USPTO website. Your application will have to meet the rules in the Trademark Act and Trademark Rules of Practice, so you might want to consult with a lawyer before filing.

An attorney will make sure your mark does not conflict with any existing mark or marks currently pending with USPTO before approving it.

Protect Your Trademark

You will have to maintain your federal registration by filing an Application for Renewal and an Affidavit of Continued Use or Excusable Nonuse every few years. These forms are also available on the USPTO website.

If someone is using a mark that is similar enough to yours to cause customer confusion, you can ask the courts to order the infringer to stop using the confusing mark. You can also request that the infringer pay damages caused by that confusion. If you have registered your mark with the federal government, you can use the federal courts for this.

If your product becomes very popular and people begin using your trademark name to refer to the generic product type, like Kleenex for tissues or Band-Aid for adhesive bandages, you must also actively prevent others from using your mark to refer to their own similar products or you could lose trademark protection. This has happened to many formerly trademarked terms, like escalator and zipper.