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TRADEMARK PROTECTION FOR ENTREPRENEURS
There are more business disputes about trademarks than copyrights and patents combined. Copyright infringement is cut-and-dry enough that disputes rarely go to court, and patent infringement is so complex that "garage" inventors commonly cannot even afford the application process, let alone file a lawsuit.
So why are people fighting over trademarks in the first place?
Your brand is often the most valuable asset your company can have, and when a competitor is using your name or your logo, it often feels like they are stealing a piece of you - as they are certainly stealing your hard-developed intellectual property.
Trademark Questions?
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What is a Trademark?
You might hear the terms “brand” and “trademark” used interchangeably, but there are some very important differences.
Traditionally, trademarks are thought of as words and designs, but they can also include smells, tastes, colors, shapes, touch, and sounds. These specific elements of your brand can serve as unique identifiers, enabling your customers to recognize your goods and services in the marketplace and distinguishing your business from its competitors. After having experiences with any of these unique identifiers, consumers come to rely on them when making purchasing decisions.
Regardless of whether customers’ experiences are good or bad, they are embodied in the trademark and the trademark starts to represent and stand for those collective experiences. The collective experiences embodied in a trademark are referred to as goodwill associated with the trademark.
Your brand, on the other hand, encompasses how the public views your business and the reputation you have. Many elements come together to create your brand, some of which are your company’s:
- Visual identity (like logos, symbols, and designs)
- Character
- Identity
- Reputation
- Values
- Personality
- Culture
- Positioning in the market
Because all of these elements combined are what influences a consumer’s perception of your brand, a brand is more synonymous with goodwill than it is with the word trademark.
Using McDonald’s as an example, some of its unique identifiers - trademarks - would be the name McDonald’s, the Golden Arches, Ronald McDonald, a number of menu items including the Big Mac and Chicken McNuggets, and even the lyrics and music to the jingle “I’m Lovin’ It.” The McDonald’s brand, on the other hand, is the leader in fast food hamburgers, focused on providing good food that’s a good value to the customer in a fast and efficient manner.
Trademarks are how customers recognize what you're selling wherever you're selling them and distinguish them from your competitors. In fact, the term "brand identifier" is much more accurate than the term "trademark."
What's the Point of a Trademark?
You might say that the purpose of trademarks is to protect a company's investment in marketing and other resources it has invested in building its reputation.
Trademarks also provide companies with incentive to invest in the quality of their goods and services. If you have an enforceable trademark, you can feel more comfortable spending money on marketing knowing that you’re deterring competitors from coming
So for example, McDonald's has spent billions of dollars marketing its food and building a loyal customer base. Trademarks are what keep a company named "MacDonalds" from riding the coattails of McDonald's marketing burgers and fries to people who believe they are buying a Big Mac.
A trademark is used for companies that provide goods. A service mark is the same as a trademark, except that it is used for companies that provide services rather than goods. As an example, HP is a trademark, because it offers products like laptops and printers. H&R Block is a service mark because it offers tax preparation and filing services.
A service mark carries the same legal protection as a trademark and must be registered with the USPTO. You’ll often hear the terms “trademark” and “mark” used broadly to refer to both trademarks and service marks.
Trademarks in Small Businesses
You may not be thinking about trademarks for your business because you're just getting started. You're not Walmart, after all. Don't sell yourself short. All big businesses start somewhere - remember when Amazon only sold books? Trademarks can help protect your business as it grows, and can help establish a solid foundation for your brand.
Another benefit of a trademark is that it demonstrates confidence in the products or services you're offering. Do you believe in your company enough to invest in it? If not, you may want to rethink what you're selling so you can firmly stand behind it.
Any identifier of. your business - a word, device, phrase, symbol, design, logo, sound, slogan, or color - can be trademarked. Anything that distinguishes what you sell from what another company sells qualifies for a trademark. The key is that the identifier must be used in commerce; in other words, you have to have your trademark attached to what you're selling to obtain protection from the law. That could be the logo on a shirt tag or a slogan on your website. Trademarks have a 10-year renewable protection span.
Along with product/service identifiers, trademarks are important to indicate the source of goods and give permission to other companies for licensing and co-branding. If you might consider marketing your business on social media or using brand influencers, having a trademark could help protect how others use your brand identifiers.
Trademarks are issued in various classes - entertainment, food & beverage, and textiles, to name a few. Trademark owners have a limited monopoly on the trademark, meaning they own the right to control the trademarked brand identifier only as it is associated with what they're selling. For example, the WWE could keep another company from using "Let's Get Ready to Rumble" for wrestling, boxing, or similar types of sporting events but would likely not be able to keep a pizza parlor from using it.
What's the Point of a Trademark?
You might say that the purpose of trademarks is to protect the substantial investment in marketing and other resources a company has invested in building its reputation. Trademarks allow companies to feel confident in investing in their brand and reputation by providing protection against copycats.
So, for example, McDonald's has spent billions of dollars marketing its food and building a loyal customer base. Trademarks are what keep a company named "MacDonalds" from riding the coattails of McDonald's marketing burgers and fries to people who believe they are buying a Big Mac.
How Do I Protect My Business Name?
The first step in protecting your business name begins in your own home state by registering your business as a corporation or a limited liability company. Not only does this provide protection against creditors seeking your personal assets, such as your house or your car, but your state will not let two business entities share the same name. Under this rule, you can incorporate or form an LLC that allows you to stake your claim in your name in your home state and prevent other business entities from using it.
File a DBA or Register a Business Name
Another step in protecting your business name is to file for a DBA (“Doing Business As"). DBAs allow you to use a "trade name," which is typically a simpler business name that is easier to remember than a formal business name. So, for example, if the name of your company is "The Johnson Swimming Pool and Pool Landscaping Company, Inc.,” you may consider a DBA of "Johnson Pools." DBAs are typically affordable and easy to obtain.
Obtain a Trademark
Trademark protection starts the moment you use your brand identifier in connection with what you sell. However, formally registering your trademark with the USPTO is important because it affords you a number of benefits, including:
- Public record of ownership, constructive notice, and legal presumptions
- Incontestable status after five years of registration
- USPTO refusing registration of confusingly similar marks
- Right to use the ® symbol
- Enhanced damages against counterfeiters
- Protection against cybersquatters
- Protection against the importation of infringing products
- Use in online sales platforms
Secure a Domain Name
You can register your business name as a domain name to help protect your business identification. There are specific laws regarding infringement of a domain name.
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