This guide will help you choose a mark for your business or brand.
IT DOES NOT GUARANTEE THAT YOUR MARK WILL BE REGISTERED WITH THE USPTO
What is a trademark?
A trademark is a recognizable sign, design, or expression which identifies products or services of a particular source from those of others, although trademarks used to identify services are usually called service marks.
Filing a trademark is the most important thing that a company can do to protect its mark from use and/or infringement.
You have a business, service or product you would like to trademark
Most businesses recognize the importance of trademarking their business, its services or its products that it sells. Trademarking your business, service or product helps others recognize you separate and distinct from others. Moreover, it provides protection for your brand from others.
Things to know about registering a trademark
1. Search Online to see if another business, service, product, etc. is using the mark you want to register. If so, try to figure out if its in the same industry with which you want to use the mark. If not, you should contact a lawyer about the possibility of registering the mark.
2. If you are not currently using the mark you want to register, but will do so in the future, determine when you will use it. You may register a mark that you intend to use, but there are certain restrictions.
3. What is the mark you want to register? Is the name unique, similar to another or describes the brand? If you use a mark that describes what the product or service does (i.e., 'Pouring Coffee' for a coffee shop), there is a possibility that the USPTO will cite it as a 'merely descriptive' mark. There are fine distinctions that one should discuss with a lawyer.
4. Similarly, you cannot trademark 'generic terms'. A generic term is described as 'the ultimate in descriptiveness." A mark is generic if its primary significance to the relevant public is the class or category of goods or services on or in connection with which it is used.
5. Securing a domain name for your business, brand, or product does not protect your mark and is not an alternative to filing with the USPTO. Although obtaining a domain name may secure your spot online, it does not legally bind others from utilizing a similar mark if it has not been filed with the USPTO.
6. Although you can file a trademark with a state, it would be wise to file with the USPTO. Filing a trademark with a particular state will grant you protection in that state. However, if you seek nationwide protection, you should file with the USPTO. Moreover, if you want to protect your mark worldwide, there is an additional process (and fee).
7. What if someone, not in your industry has registered your mark? If you want to sell shoes and recognize that a bartending company has a registered mark with the same name, there still may be a chance you can register your mark for selling shoes. Ask an attorney.
Additional resources provided by the author
For more information, you may visit the USPTO website or contact my law firm.
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