Trademarks are one of the most valuable assets a business can own. They are a type of intellectual property that lets your customers know that a product or service is coming from you. In other words, a trademark is your brand. With that in mind, below is a brief overview that should help answer some common questions you may have.
What Can You Register as a Trademark?
Now, businesses typically register their name or logo as marks. However, the definition of a trademark is much broader. Generally speaking, you can register anything that serves as a powerful differentiator between your business and your competition.
For example, some non-traditional trademarks that you may have come across include:
- Sounds – such as the NBC chimes
- Colors – such as the yellow color of Post-It Notes
- Shapes – such as the shape of Converse sneakers
- The motion of a product – such as Lamborghini’s vertically opening doors
- Scents – such as the smell of Play-Doh
Note that businesses can get very creative with branding. As you can see, some of the most well-known marks we have today are not what you might first think of as a trademark.
What Can’t I Register as a Trademark?
That said, it’s important to note that while you have flexibility in crafting your own trademark, there are some limitations. First, you can’t register any mark that is already registered. This includes marks that are considered too similar to something registered. Further, you are not allowed to register a mark that is simply generic or literally descriptive.
For example, calling your hair salon “Hair Salon” would be descriptive and could not be registered as a trademark. Note that there used to be limits on registering marks that were deemed “immoral or scandalous”, but this was recently overturned on First Amendment grounds.
However, keep in mind that you are not permitted to register any mark that is deceptive. We’ll go into this more in another post, but generally speaking, avoid using names that contain an outright lie. For example, if you sell meat products, calling yourself “Vegan Delight” would be considered deceptive.
How Do You Create a Trademark?
It’s important to understand that you do not need to register your trademark to have protection. This means that, so long as you follow a few basic steps, other people are not allowed to use your mark to sell their own goods or services without these acts being classified as an infringement.
All you need to do is make sure that you are the first to brand with the mark, and then simply use the trademark in “commerce”. This means selling your product or service under the trademarked name. If this occurs, you create an enforceable trademark.
Note that you can also register the mark at both the state and federal levels. The main benefit of registering is that it puts others on notice that the mark has been taken. This means that the penalties for infringement may be more severe.
That said, registering your mark on the national level with the United States Patent and Trademark Office (USTPO) means that you will have national protection. Without this, someone in a different state could be the first one to use your mark in that geographic location. This could limit your ability to expand your business under that name.
How are Trademarks Different from Patents and Copyrights?
Now, you may have heard the terms “patents” and “copyrights” and wondered how these differ from trademarks. While these are all types of intellectual property, they serve separate functions. Here is a basic overview of the other two:
Patent: protects an invention. If you have a patent, only you can sell that invention for the time of the patent. You must first apply to the USPTO to receive a patent.
Copyright: protects original works, including music, written works, or artwork. It gives the owner the exclusive right to reproduce, distribute, display, or perform the work. Protection begins as soon as the work is created, but an owner can also register it with US Copyright Office.