Trademarks and Intellectual Property: What you need to know

Those tiny superscript symbols that appear next to brand names and logos—TM and ®- represent trademarks. The TM mark means that someone considers the wording to be their trademark, but the trademark is unregistered.  The ® means that the trademark is registered with the USPTO.

A trademark represents the branding of your business, your product, or your service.

Your brand or trademark represents the quality of your products, your reputation, and all the good things (and bad) that make your business what it is.

Any investment you make into your marketing and name recognition is wrapped up in your trademark.  This is why some trademarks can be extraordinarily valuable – and why your’s is important, too.

Intellectual Property and Trademarks

Trademarks work differently than the other types of intellectual property.

While patents can protect an invention, which can be a technical machine or process, trademarks protect your branding and marketing.  

You can think of patents as protecting investment in research and development, while trademarks protect your investment in the commercial aspects of your business: the investment in awareness, advertising, marketing, sales, service, and the rest.

Trademarks are unique in intellectual property because they never expire – provided that you keep using the mark.  Every other form of IP protection has an expiration date, after which the IP is free for everyone to use.  Trademarks require renewal every so often, but once you have it, you can keep it forever.

How is a trademark different from a copyright?

A copyright and a trademark are different.  The distinction between them is in the types of intellectual property they protect:

• A trademark safeguards intellectual property that exists solely for commercial purposes, such as brand names, trademarks, taglines, and slogans.
• A copyright covers creative works of all sorts.  These might be books, images, paintings, sculptures,, short stories, character names and fictional worlds, songs, code, and other forms of creativity that are not specifically intended for commercial use.

Why should you register your trademark?

If you create a brand name, such as the name of your business or product, you have “common law” rights to that name.  However, when you register your trademark, you make a public record of your ownership of that mark.

The common law rights for trademarks means you (presumably) own the trademark when you start using it.  However, you might be stepping on someone else’s trademark at the same time.  If the other person started using their trademark before you, they can sue you for trademark infringement.

By going through the registration process, your trademark will be searched by the USPTO to find any marks that might be confusing to yours.  You might be able to limit your goods and services to narrow the scope of your trademark.

Benefits of registering your trademark

Registering your trademark gives you two big advantages.  First, your trademark is searched by the USPTO to make sure you are not already infringing someone else’s trademark.  This will minimize any lawsuit that pops up from someone else claiming you stole their brand.

Second, registered trademarks are much easier to enforce than conventional, common law or TM labeled trademarks.

Can two companies have the same trademark?

Yes – but the two companies have to provide different goods or services.

Apple is a trademark for both Apple Records (which produced the Beatles albums) as well as Apple Computer.  For Apple Computer, the trademark 

“apple” cannot be used for a music label, since it was already in use by Apple Records.

Similarly, Apple Records cannot branch out into the electronics field and still use their “apple” trademark, since that field is owned by Apple Computer.

During the trademark examination process, your trademark attorney will help you craft the definition of your goods and services to include everything you plan to produce under that brand.  At the same time, the trademark attorney will have to limit the trademark coverage to avoid any other company with a similar trademark.

How to enforce your trademark

When your trademark is registered with the USPTO, you get the following rights and protections:

• The right to file a lawsuit in federal court if a trademark is allegedly infringed.
• It makes it easier for you to register your trademark in other countries.
• Your trademark registration has been made public.
• You have the right to prohibit the importation of foreign products that violate your trademark.
• You are legally presumed to be the owner of the trademark and to have exclusive rights to use it in connection with the products and/or services specified in your registration.

Is my trademark secured globally?

This varies according to the country in which you have coverage. If you have a registered trademark in the United States, the United Kingdom, or Japan, you are only protected in that region. If you have rights in Europe, however, you will have a Community Trade Mark (CTM), which means you are protected in all European countries.

What is the distinction between the trademark symbols TM and R?

The TM symbol is to be used for all unregistered trademarks or trademark applications that are pending. The R can only be used if you have successfully obtained trademark rights for your mark.

Is there a distinction to be made between a trademark and a service mark?

Yes, it is. A service mark is given for services that are protected. Furthermore, the symbols vary. The TM sign can be used for trademarks. The SM symbol will be used for service signs.

Can I trademark a logo?

Yes.As the trademark holder, you have power over where the logo appears, how it is adapted or altered, and who can license it for use in their own materials.

The process of trademarking a logo

• Is it possible to get my own name registered as a trademark?

Yes, it is. However, it must be for a business-related reason.

• Does my logo qualify for trademark protection?

It can if it is strong enough. If it is not sufficiently solid, the USPTO (or your country’s trademark office) will reject it.

• What makes a good logo?

A good logo or brand is one that is original to its owner.

• How long does it take to register a logo as a trademark?

From registration to issuance, trademarking a logo usually takes six to nine months.