Many entrepreneurs and business owners don’t think about trademark law until it is too late. If you are just getting started writing your business plan, you should think about it right now. If you’ve already started your new business, well, you should think about it right now too.
Here are seven critical things you should consider when thinking about your trademarks.
WHAT DOES A TRADEMARK PROTECT?
Trademark laws allow you to protect any name, logo, slogan, or similar branding element, that you use to distinguish your goods or services from those of your competitors. While many forms of intellectual property (copyrights and patents, for example) primarily exist to protect businesses, trademark laws exist to protect consumers. The idea is that consumers should be able to buy a product and trust that the product is coming from the company listed on the product.
HOW TO PROTECT YOUR TRADEMARK.
It is important to note that trademark registrations are highly encouraged (see below), but they are not technically required. Rather, courts will enforce trademark rights as soon as you begin using your mark in commerce. However, without a registration, your rights will be limited to the geographic area in which you use the mark.
Thus, it is almost always a good idea to file a trademark application with the United States Patent and Trademark Office. If approved, you can protect your mark nationwide.
HOW LONG DOES A TRADEMARK LAST?
Generally speaking, you can protect your trademark for as long as you use it in commerce. However, if you allow other people to also use it, you may lose your trademark rights. For that reason, it is important to police the market and stop other people from using your trademark without your permission.
WHY DO GOODS/SERVICES MATTER?
By way of example, think about Delta Airlines and Delta Faucets. Both are allowed to use “Delta” because consumers are not likely to think they are the same company due to their different areas of focus. However, if you were to open a business selling sinks and name it Delta, you may end up receiving a cease and desist letter from Delta Faucets since your company’s products and their products are similar in nature.
Thus, it is always important to consider what goods or services you’d like to tie your mark to since you will largely be limited to that area when you obtain rights.
WHAT MAKES A “GREAT” TRADEMARK?
For starters, you should avoid trying to protect generic and descriptive names because you generally cannot protect them. You’ll never be able to protect “Restaurant” for example because if you could, no one else would be able to use that word to describe their business. You can sometimes protect “descriptive” names, but that can be difficult (think about “Holiday Inn” for example).
What you should aim for is suggestive or arbitrary names. “Coppertone” for sunscreen is considered suggestive; while “Apple” for computers is considered arbitrary. In both cases, you’ll be more likely to obtain good trademark rights.
HOW TO RUN A TRADEMARK SEARCH.
Before adopting a name, you should always run a trademark search. You should start with the publicly available database available at www.uspto.gov. Assuming you clear that database, you should then search other government databases such as state trademark registries and non-public (common law) sources such as Google, Facebook, trade publications, newspapers, and elsewhere. This “common law” search is important because, as mentioned earlier, people can obtain trademark rights even without a federal registration.
Also note, while you can search on your own, it is usually best to hire a professional trademark search company to run your search. Their search will be more thorough than what you can do on your own.
WHAT CONSTITUTES TRADEMARK INFRINGEMENT?
Trademark infringement occurs when someone uses a mark in commerce and consumers are likely to be confused as to the source of the goods. For example, if you began selling computers under the name “Apple,” it is likely that your customers would assume you were selling them computers made by Apple, Inc., in California. If that confusion is likely, then the real Apple could use trademark infringement laws to prohibit you from doing that (and they might be able to seek damages too).
Starting a business can be one of the most exciting things you ever do. However, as you can see, there are a lot of things to consider. Luckily, with the right help, you can increase your chances of success. In addition to the helpful tips above, you should consider taking formal classes to learn more. One such program is the Kauffman Foundation’s FastTrac program, which you can use for free at www.fasttrac.org.