Trademark Basics for Entrepreneurs: How Do Trademarks Work?

7 minutes

Table of Contents

Andrew Rapacke
Andrew Rapacke is a registered patent attorney and serves as Managing Partner at The Rapacke Law Group, a full service intellectual property law firm.
How Do Trademarks Work

Most people have heard of trademarks yet lack an in-depth understanding of what they are, how they work, and why they are important. The mainstream media often references trademarks, providing a surface-level explanation without delving deep into how they function.  A trademark can be any word, phrase, symbol, design, or combination of these things that identifies goods or services.

How Do Trademarks Work?

The purpose of registering you trademark is to identify the source of your services or goods, provide legal protection for your brand, and help guard against counterfeiting and fraud. . Failure to register your trademark means you are not fully protected, and your brand may be in jeopardy. 

A “trademark” refers to both trademarks and service marks.  Service marks are used to identify services, while trademarks are used to identify goods. When you register your trademark, you’ll enjoy legal protection to safeguard your brand and revenue, successfully identify your goods and services with your brand, and protect against potential fraud and counterfeiting.

However, registering a trademark does not mean you legally own the word or phrase. Other business owners may be able to use the word/phrase you’ve trademarked without violating the law, depending on the circumstances. Lean on our trademark attorneys for guidance; we’ll do everything possible to enforce your legal protections and safeguard your intellectual property.

How To Trademark Words or a Phrase

A trademark distinguishes you from the competition. The registration process begins with a meeting with our intellectual property attorneys. Our trademark attorneys will search existing trademarks on file with the United States Patent and Trademark Office (USPTO). The USPTO is the federal agency responsible for granting U.S. patents and registering trademarks.

If you would like to trademark the word or phrase in question locally, our attorneys will explore that option by searching the state’s trademark database and applying on your behalf. To trademark the phrase locally, your business must already use it in the public domain.  However, to file for a federal trademark, the use of the trademark can already be in use or you can file for an intent to use.

Trademarking a phrase can be challenging due to legal requirements.. One complication that may arise is if your trademark merely describes a feature, ingredient, or function about one of your services or products.  If so, your trademark may be held to be merely descriptive and will not be as strong as a fanciful or unique trademark.  If it is too descriptive, it may be held to be generic. 

Meet with our trademark attorneys, let us know which specific words, phrases, mottos, slogans, taglines, or design you would like to protect, and we’ll do the heavy lifting in the context of the law to safeguard your intellectual property, setting the stage for marketing, legal protection, brand recognition, and improved sales.

The Starting Point: A Comprehensive Trademark Search

Every trademark application begins with a comprehensive search.  The purpose of a comprehensive trademark search is to determine if the trademark is already being used by someone else or if there is a trademark that is confusingly similar to the one you’re about to register.

If you were to bypass the search process and later found out that another business had already registered or applied to register the same trademark, you would suffer a significant legal, financial, and professional setback. Fret not, as our trademark attorneys are here to conduct an exhaustive search on your behalf. We search local and federal trademark databases to obtain protection for a trademark at the state level, the federal level, and also through common law protection.

The trademark search process centers on a review of the USPTO Trademark Electronic Search System (TESS). This database consists of all registered trademarks as well as their classes. In total, 45 such classes exist, with 11 relating to services and 34 relating to goods. The TESS search reveals all trademark registrations, including active and inactive ones, as well as all pending trademark applications..

Aside from the searches described above, searching Google for the trademark in question is also prudent. There could be someone like you who is using the trademark without registration.  Your attorney will also check trademarks at the state level using resources available through the Secretary of State’s Office to identify similar names or phrases that have been registered.

Should Your Small Business Register a Trademark?

There is a common misconception that small businesses don’t have to apply for trademarks simply because their relatively unknown offerings will likely go unnoticed. However, it merely takes one lawsuit to upend a company and ruin its upward trajectory. If you own or manage a small business, seeking trademarks is in your legal and financial interest. Our intellectual property attorneys are here to navigate the legal maze on your behalf.

Lean on our trademark attorneys, and we will seek the legal protection you need.  Such protections are also necessary for startup businesses. Secure the trademark, and it will function as your company’s identity, bolstering marketing and sales while protecting your business from competitors and fraud.

What Are the Different Types of Trademarks?

In addition to regular trademarks, you also have three other types. 

One type of trademark is a collective trademark.  The Lanham Act defines collective marks as marks owned by collective entities and used by the collective’s members.

A Trade dress is another type of trademark.  A Trade dress is akin to product packaging or product design.  It does not protect the function of the product, but protects how the product is displayed to consumers.

Certification marks are a third type of trademark.  These are names, words, symbols, or even a device an entity or person uses to certify a good or service’s characteristics in a regional context. Such marks are employed by authorized users who must adhere to goods/services requirements as detailed in established standards. Meet with our trademark attorneys to determine which specific type of mark is optimal for your unique business, and you’ll be able to move forward in full confidence.

Copyright Vs. Trademark

Those unfamiliar with intellectual property law often understandably confuse trademarks and copyrights. Though these legal protections serve similar purposes, they are not the same. Each is a distinct type of intellectual property that requires a unique process. differences between the two even extend to the length of protection. The overarching similarity shared by the two forms of intellectual property is preventing others from using your intellectual property for profit.

Trademarks serve as a source identifier for a product or service.  Copyrights provide the owner with exclusivity regarding rights to authorize other business owners or professionals to use the work in question. Copyrights also secure the exclusive right to allow others to create derivatives, sell copies, distribute, and even publicly use the work.

Copyright registration also obtains necessary legal standing, empowering the owner to legal damages if there is provable infringement. Furthermore, such registration safeguards the original work product of the creator in tangible form. Copyrights do not apply to titles of songs, books, ideas, plots, themes, or events.

Notable Trademark Examples

Take a look in your refrigerator or pantry, and you’ll find a litany of trademark examples. Even the electronics you use are likely to be trademarked. As an example, two of the most common word trademarks include Coca-Cola and Chiquita.

Examples of fanciful trademarks are the K-Swiss signature sneaker lines, the plaid design of Burberry garments, and the uniquely shaped stitching used on Levi Strauss pants pockets.

Nike has trademarked “Just Do It” with U.S. Reg. No. 1,875,307. The shoemaker has also trademarked its signature swoosh symbol with U.S. Reg. No. 1,145,473. In fact, Tarzan’s famous verbal expression used to sell toys and more is registered as trademark U.S. Reg. No. 2,210,506.

How Long Does a Trademark Last?

Trademarks secured for use in the United States typically provide a decade of protection. The first renewal is between the fifth and sixth years after the registration date.  The second renewal is between the ninth and tenth years after the registration date.  The remaining renewals are then every ten years. 

There are no limits to the number of renewals you can file.  As long as you continue to use your trademark with the goods and services identified in your registration and pay the necessary USPTO fees, then you can renew your trademark indefinitely.

Different Trademark Symbols Explained

Several unique symbols signify a trademark. The three trademark symbols are TM, SM, and the Circle R. The Circle R is a diminutive letter R within a circle or parentheses: ®.  The trademark TM symbol is used with unregistered trademarks used in association with goods. The SM symbol is used for unregistered trademarks used in association with services. The Circle R, ®, is used for trademarks registered with the USPTO.

It is important to wait until the USPTO has approved your trademark application and provided you an official registration before using the ® symbol.  

How Much Does It Cost To Own a Trademark?

The cost to trademark a good or service is typically around $2,000. Preparing and filing the trademark application is usually $599 or more if handled by an experienced attorney. The Office Action Response is also $599 or more. The actual trademark search process runs $299 or more. The USPTO filing fee is $350 per class.

We proudly provide a guaranteed trademark offer, including our attorney-spearheaded trademark application valued at $1,750. We also provide a trademark conflict search and provide unlimited responses to the office actions issued by the USPTO, which is a value of $2,000 or more within itself.

How Do Trademarks Work Internationally?

Trademarks can be protected on a global scale through international trademark registration. Contact our intellectual property attorneys to secure international trademark protection if your business needs or desires such expansive protection. This form of protection requires an international trademark application submitted in each country where protection is sought. Sometimes, using a multinational filing system such as the Madrid Protocol is the best option.

State Vs. Federal Trademarks

As noted above, there are differences between state and federal trademarks. Trademarks at the state level are registered with the Secretary of State’s office at the local level. A state trademark provides protection at the state level, empowering the trademark owner with exclusivity for using the trademark within the state’s borders.

The use of “TM” for trademarks and “SM” for service marks are available at the state level. If the trademark is infringed upon within the state’s borders, there is solid legal footing for a lawsuit.

Federal trademarks, registered with the USPTO, provide business owners with exclusive rights to use the trademark that has been registered related to the goods or services throughout the entirety of the country. Secure a federal trademark and you’ll be legally empowered to use it across the United States.  Other companies cannot use the mark or a similar mark unless you provide explicit legal permission through our trademark attorney.

Do I Need an Attorney to Apply for a Trademark?

Our intellectual property attorneys search for and seek all requested trademarks. Let us focus on the details of obtaining the trademark your business needs, and you’ll be liberated to thrive in your niche. We take pride in surmounting intellectual property legal hurdles promptly while respecting the confines of the law.

Schedule a no-cost strategy call and learn more about our trademark guarantee.

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