From time to time, small business owners create something so unique, it needs protection. If it’s the form of the written word, it can be copyrighted, for example. And unique inventions can be protected by patents.
But what if you’re trying to protect is a product, service, device or term so particular to a business that it defines the brand?
Trademark Answers from a Tutorial Held at the USPTO
To answer some of the more common questions, let’s pull some highlights from the video above, wherein the US Patent and Trademark Office (USPTO) invited Mark Trademan, from their Trademark Information Network to speak on the issue. I strongly recommend bookmarking the video and watching it on your next lunch break if you don’t have 40 minutes right now.
There are great tips in the video even for people who already have extensive experience with trademarks. The questions below are the ones found to be most commonly asked in web searches, which had simple answers available. The answers are highlights from the video, with editorial notes in italics – in other words, information straight from the source.
But before acting, a reminder: though the source of most of this article is directly quoted from the USPTO, this is information, not legal advice on how to proceed. Please conduct your due diligence before acting on this information.
What is a Trademark?
Well, the legal definition of a trademark is any word, slogan, symbol, design, or combination of these things, that identifies the source of your goods and services and distinguishes them from the goods and services of another party. But the easiest way to think about it is this: a trademark is a brand for goods and services.
What’s the Difference Between a Trademark and a Service Mark?
Technically, a “trademark” identifies the source of goods, like shoes or laptops. A “service mark” identifies the source of services, like landscaping or accounting. But, here’s the thing. In everyday language, people often refer to a service mark as a trademark,
Why Is it Important to Register My Trademark with USPTO?
Okay, so, now that we know what trademarks are, we need to know why it’s important to register them with the United States Patent and Trademark Office.
A lot of people ask me, “Is federal registration of my trademark required?” The quick answer is “No.” But, it will enhance your rights.
See, in the United States, trademark rights are created through use of your mark in commerce and not through registration. These use-based rights are known as “common-law” rights. The rights, however, are limited, often to a particular geographic area. That means it might be hard for you to enforce those rights outside that limited scope and it might be hard for other people to know about your rights.
So, federal registration is going to greatly enhance your rights. Specifically, registering your mark is going to give you the following benefits:
First, it creates 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.
Two, it gives you a legal presumption of the exclusive right to use your mark nationwide with the goods and services that are identified in your registration.
Editorial note: The video goes on to name SIX more benefits!
It’s Starting to Sound Like I Need Attorney Advice for this process. What if I can’t afford it?
Most attorneys do charge a fee for their services. But there are, however, free and reduced-price options that may be available, if you meet financial eligibility requirements.
For example, attorney bar associations often have “pro bono” divisions where they provide legal services to those who couldn’t otherwise afford them and sometimes those services will include trademark services.
In addition, the USPTO supports a Law School Clinic program through which law students, working under the guidance of a qualified faculty member, can assist you with your application. Just go to USPTO.GOV and search for the term “Law School Clinic.” You’ll find information about the program, along with a list of participating schools.
There is also free and low cost business advice through the SCORE program run by the Small Business Administration. Check out SCORE.ORG and a SCORE volunteer may be able to assist you with your trademark questions.
Another great program is the Patent and Trademark Resource Center program. Or PTRC program. Now, PTRCs are located all across the country and have been designated by the USPTO to house copies of patent and trademark materials and to make patent and trademark information available to the public. Use the PTRC page, which is on USPTO.GOV, and you can find the location nearest you.
More Resources for Additional Information
There are plenty of sources for more available at the USPTO, as well as here at Web.com. After you’ve watched the video, you may want to read more about trademarks:
Protecting Your Trademark is a PDF from the USPTO available on their website [pdf].
Many times the first step when you are ready to register is a trademark search using USPTO’s Trademark Electronic Search System (TESS).
There are some tips about the TESS resource on their site, and some on the TESS process in a guest article from attorney Lisa Dunner here at Web.com called The Importance of Trademark Clearance Searching.
Also from Lisa Dunner on Trademarks: Securing Your Futurue Use of a Trademark.
Flickr Image courtesy of BusinessSarah