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  • Writer's pictureDEBORAH MORTIMER

What is a trademark?

So, you started a business and came up with a terrific brand name, logo, or tagline. Maybe you’ve already started using it, or perhaps you haven’t, but one thing is for sure: every day, you grow more and more concerned that someone, somewhere, will come up with the same brilliant idea and begin using it before you. Or worse, someone will copy your idea and pass it off as their own. So how do you combat these fears and protect your brand? Trademark it.

What is a Trademark?

Trademark is a way to legally protect a specific type of intellectual property. A trademark can be any word, phrase, symbol, design, or combination of these things used by you to identify your products and/or services. Your “brand” distinguishes your products or services from those manufactured or sold by other third parties. Basically, it’s how customers recognize you in the marketplace and distinguish you from your competitors.

A servicemark is identical to a trademark. The only difference is that a service mark is used to identify or distinguish a service used in the marketplace, rather than goods or products.

For example, think of “Apple,” and its crisp Macintosh apple symbol or “Arby’s” and its tagline “We have the meats!”. These are both brands that are instantly recognized, remembered, and associated with the products and services they sell. They are also registered trademarks.

Why Should You Seek Trademark Registration?

Well, aside from identifying the source of the goods and services you provide, there are a couple of other really good reasons for trademark registration. First, it provides legal protection of your brand and ensures that you’re not infringing on an existing brand. Second, it puts others on notice that your brand exists and enforces it against possible copycats who may either profit from or harm your brand.

Trademark registration provides legal protection of your brand nationwide. While the state where you operate your business allows you to file for trademark registration for a nominal fee, this will only provide you with statewide protection against infringers. The only way to ensure nationwide protection is to file a trademark application with the federal government through the United States Patent and Trademark Office (USPTO).

When Should You Hire a Trademark Attorney?

The answer is simple: Yesterday. Ha! Well, not really, but the best time to secure your brand is before you’ve invested any money in it. That is, before you’ve registered your business under the brand name with the Secretary of State of your state, purchased a web domain, and/or secured a social media handle. A trademark attorney can conduct a comprehensive search of your intended brand name or logo to ensure that it is legally safe to use. That is, it’s not infringing on another brand’s rights, and it is unique enough to make your brand stand out. Also, a skilled attorney knows the nuances of trademark applications and how to craft you application to minimize certain pitfalls (like Office Actions).

It is a headache when a business has invested significant money on online and product branding, only to find that it’s forced to rebrand because the mark has been rejected by the USPTO or was challenged by an existing trademark.

So while you may be in love with that brand name and/or logo, let us do the research and give you an opinion of whether it’s one you can use.

This blog does not constitute legal advice and does not establish an attorney-client relationship. If you need legal advice, please contact Mortimer Legal, PLLC directly to discuss what we can do for you.

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