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A brand is the mental or emotional image of your business or product that automatically appears when someone sees your company name, slogan or logo. It is the personality or reputation of your business, and it is important that an owner builds and reinforces the right brand holistically and organically. A key component of this strategy is your ability to legally use the brand and ultimately prevent others from undermining it.
Trademark vs Patent and Copyright
As you build a brand, how do you best support and protect it legally? To answer this, it’s important that we have a basic understanding of the three main types of intellectual property – copyrights, patents and trademarks – and be able to differentiate which is more important to branding (spoiler, trademarks are ultimately your business). Brand protection is the key) ).
First, copyrights protect original “works of authorship,” such as the writing in a book, the script of a movie, the words of a speech or parts of a song – you’ll see Ed Sheeran’s recent association with Marvin Gaye’s estate. Hui court battle in which he alleged that Sheeran’s “Thinking Out Loud” infringed on elements of Gaye’s “Let’s Get It On”.
Copyright provides a financial incentive for authors to create new works and make them available to the market. While registering a trademark provides additional benefits, the simple act of creating and fixing a work that is sufficiently original is sufficient to claim a right to that work.
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Second, patents protect inventors’ rights over their inventions, giving them the ability to monetize them and legally prevent others from making, using, or selling the invention without the inventor’s permission. Patents come in three varieties – utility patents (which represent about 90% of all patents), design patents, and plant patents. Consider a world without patented inventions such as the light bulb, the smartphone or the internal combustion engine.
Finally, trademarks protect your brand, which includes logos, slogans, and brand names. Think of the Nike brand, its swoosh logo and its “Just Do It” slogan, which reinforce its differentiated brand, and communicate the kind of activism, decisiveness, empowerment and continuous innovation that Nike’s brand embodies. Are. Federal trademarks are administered by the United States Patent and Trademark Office (USPTO), which reviews and approves or denies all trademark applications.
The Power of Federal Trademark Rights in Protecting Your Brand
If you are a business owner, you may already have a trademark without realizing it. Under state common law, simply using a word, symbol, design or slogan to distinguish your company or product from those of your competitors constitutes trademark rights. These trademark rights include the ability to prevent others from using the same word, symbol, design or slogan for a similar class of goods or products in the local market, and the right to affix “TM” to the mark to reinforce that fact. . claiming these rights.
While you can become a trademark owner simply by using your trademark to distinguish you as a source of goods or services, these state common law trademark rights may be too limited to support your needs. Consider that federal trademarks offer the following unique benefits above and beyond state common law trademarks:
- nationwide priority and protection of your branded trademark versus protection limited to a city or state;
- clarity regarding the ownership of your trademark;
- the right to use the symbol ® with your trademark versus “TM”; And
- Use of the federal courts and special federal remedies against violators to protect your rights.
RELATED: Everything You Need to Know About Using a Trademark for Your Business
How to Get a Federal Trademark
You can apply for federal trademark protection directly through the USPTO’s site. This process, which begins with an application and ends with a rejection or grant of a registered trademark, will typically take 12 to 18 months.
The first step in the process involves examining your product name, logo or other brand image to ensure that it is eligible for trademark protection. It hasn’t already been used by someone else for your type of goods or services. If the mark is likely to be confused with another protected trademark, is generic, is “merely descriptive” of your product, or is a person’s last name, your trademark probably won’t be registered.
In addition, you should also check your mark against registered trademarks at www.uspto.gov and through general web browsing to ensure that a mark that is otherwise protected is not being used in commerce by someone else. Used to be. If you determine that your trademark is unlikely to be granted, save yourself time and filing fees and either look for another mark that can be protected or use the mark locally with its inherent limitations. Carry on.
Once you have the mark examined, you can prepare and apply for the Trademark Electronic Application System, or TEAS. It will then be assigned to a USPTO investigating attorney, and you can track the progress of your application using the unique serial number assigned to it.
If the Examiner decides that the mark meets the minimum requirements for registration, the Examiner may approve the mark for publication in the Trademark Official Gazette, which then allows those who disagree with the registration to file an opposition. If either the examiner questions your ability to register the mark pre-publication or someone else objects to it after it is published, you must respond to these concerns and satisfy the USPTO that you own the mark. has the right to register.
The process may seem complicated, but as a US-based applicant, you can file your trademark application without hiring an attorney. However, handling the process on a DIY basis can increase complexity and the potential for rejection, so you should consider whether it’s worth the consulting fee (usually less than $5,000) to hire an attorney with experience in the federal trademark process. Investing is justified.
If you pass the 30-day post-publication review and emerge unscathed, your mark will be registered after another 3 or 4 months. At this point, your mark will be an officially registered trademark entitled to all protection and usage rights under federal law.