A trademark is more than a ™ or ® designator. It is a way to protect your brand and your goods or services tied to this brand. If you are a creator of any kind and are hoping to create a stronger consumer connection to your specific product, consider trademarking. Read on to learn more about the process.
What does it mean to trademark your brand?
Before you start the process to trademark your brand or business name, it’s important to first understand what a trademark is used for. A trademark is used to protect your brand name or logo in the use of selling goods or services. Like real property, the name of your brand has real value. When it is not protected, you place it in a vulnerable position. You will know that something is formally trademarked when you see the ® symbol. You can also use the ™ designator if you want to claim your goods or services but have not registered your brand with the USPTO, which stands for the United States Patent and Trademark Office. In short, trademarking ensures you have the legal right to use your unique business name or logo. Trademarking protects and upholds your brand.
Who should trademark?
If you’re a content creator, selling a product or service or have a brand identity that you want to protect, consider obtaining a trademark. Trademarking is important when:
- You have a unique brand, slogan or logo
- You want your customers or clients to easily identify you and your products
This last point is particularly important in the age of online businesses and e-commerce. With so many people creating new businesses and brands, it is important that you continue distinguishing yourself from others in the market.
A common mistake is associating a web domain with a trademark. Registering for your web domain is not the same as a trademark; it is not protected. And only operating from the web domain, without offering a specific product or service, does not qualify you for a trademark, unless you use the domain as a brand outside of this space.
When you trademark your brand or business name, you ensure that other brands using confusingly similar names cannot be created. And if you want to see your brand grow beyond your current sphere or level of influence, taking steps to create a stronger association of specific goods or services to your brand is an investment.
Before you start the trademark registration process
Before you begin the process of registering (explained in the next section), there are a few things you should first consider. Covering these basics and answering some of the following questions for yourself has the potential to make your trademarking process smoother and create a higher chance of first-time application approval. Remember, application fees are non-refundable! The following points come from a USPTO guide to trademarking, so make sure you go through these!
1. Is my trademark too confusing?
If he USPTO receives your application and determines that there is a “likelihood of confusion” between your brand and another, they will reject your application. This is actually the most common reason for applicant rejection. A mark, or trademark, is too confusing when 1) the actual marks are similar or 2) the goods or services being offered are related to the point of possibly confusing a consumer. Remember: trademark law is set up for consumer protection.
Now, for a mark to be confusing, it doesn’t have to be identical to another mark. It can also be similar. The USPTO outlines that when the marks
- Sound alike
- Are visually similar
- Have the same design elements
- Have the same meaning, including translation
- and/or sell similar goods/services
they are “confusingly similar,” despite not being identical, to the point of creating a “likelihood of confusion” among consumers.
2. Is my trademark strong or weak?
A strong mark is one that will be easy to monitor and protect. A weak mark is one that is too general to the point of it being extremely difficult and costly to protect, simply because it will be used often.
A weak brand is:
- Descriptive
- Generic
For example: “The SMCC: Social Media Content Creator” as a mark for an online social media manager and content creator business. This mark would fall into both of the above categories. Not only is it generic, but it is also simply describing the actual service being provided.
A strong brand, on the other hand, is:
- Arbitrary
- Fanciful
- Suggestive
For example: “Click-Cheese” for a photography business. While the mark can sound a little arbitrary, it is also suggestive. A mark that is arbitrary or fanciful has a name that is not usually associated with the product, or a completely random word. A mark that is suggestive leads the consumer to suggest, not describe, what is being offered.
Trademark registration process overview
So you have a specific good or service you have been offering to consumers. You’ve been building your niche. And you have your brand or business name, which you’ve thought about it a lot. As you grow your business, you want to run it through the two previous questions to start, especially since a rejected application means a lost fee.
1. Conduct an online trademark search
To make sure you have the best chances of getting your trademark filing application granted, conducting a preliminary trademark research process will be beneficial. The USPTO offers this free search tool called TESS (Trademark Electronic Search System). This is the only search tool you will need (not Google!), as it contains tons of information, sample search strategies, and even prior pending applications. Do your part and check trademark names!
2. Determine your filing basis
Basically, on what grounds are you filing your application? There are four basis:
- Use in commerce basis
- Intent-to-use basis
- Foreign registration basis
- Foreign application basis
Check out the USPTO’s Trademark Application Process to read more about each filing basis and determine which is most applicable to you.
3. Consider hiring a trademark attorney
It is not a requirement to hire one if you are domestic-based, but with bureaucracy often being difficult and confusing, hiring one might make the process smoother. On this week’s episode, we featured Taylor Tieman, Esq., founder and owner of Legalmiga®. She’s a Latina independent attorney specializing in providing legal services to small business, entrepreneurs, influencers, and content creators. Check out our latest episode to learn more!
4. Budget for your application fees
Trademark application fees are over $200, per classification. Make sure you prepare for this part of the application as well.
5. Prepare and submit your application
Your application will be filed online through the Trademark Electronic Application System (TEAS). And once you submit, it is also your responsibility to monitor the status of your application through the Trademark Status and Document Retrieval (TSDR) system.
6. Work with your assigned USPTO examining attorney
If you have submitted a complete and valid application, an attorney will be assigned to your application. This attorney will check for compliance, ensure all the required fees are included, and will conduct a search for any conflicting or “confusingly similar” marks. This process may take several months.
Once this is done, you will be issued a letter with the acceptance of your trademark, or a letter detailing the reasons for refusal. If they have minor edits to make, they may just contact you via email or telephone in order to avoid extending the process.
What To Do After Obtaining Your Registered Trademark
Once you are successfully issued a trademark, it is also your responsibility to monitor and maintain. The USPTO grants trademark rights, but it does not enforce or protect the trademark against infringement. You must submit trademark maintenance documents and continue monitoring the TSDR system.
Trademarking your business name is an investment in your brand for the long-term. When your brand is rightfully yours, you can create confidently knowing that what you produce will remain yours. Build your brand and protect it!
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3 Responses
DIY trademark application filers are being short-sighted. Not just in the sense that they are risking their business’ valuable trademark assets to save a little money. But also in the sense that they don’t think about the complicated trademark registration process that only begins with the application filing.