Frequently Asked Questions
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A trademark is a symbol, word, phrase, design (or even sound or smell) that is used to identify and distinguish goods or services in the marketplace. Trademarks help consumers recognize and associate certain products or services with a particular brand or company. Think of it as your brand's signature.
A trademark identifies and distinguishes the source of goods, while a service mark identifies and distinguishes the source of services. Both serve the same purpose but apply to different types of offerings. For simplicity purposes, we often use the term "trademark" when we are talking about trade or service marks.
Think of it like this:
Trademarks protect brand names, logos, and slogans (your identity).
Copyrights protect creative works like books, songs, and movies (your creations).
Patents protect inventions (your innovations).
When it comes to trademarks, the stronger and more distinctive your mark, the better protected it will be. Here’s a breakdown of the types of marks that are ideal for trademark purposes, ranked from strongest to weakest:
1. Fanciful Marks (Best)
Made-up words with no prior meaning, like Kodak or Xerox.
These marks are entirely unique and highly distinctive, making them the easiest to protect.
2. Arbitrary Marks
Common words used in an unrelated context, like Apple for computers or Amazon for an online store.
These marks are also distinctive and strong because they don’t describe the goods or services they’re associated with.
3. Suggestive Marks
These marks suggest a characteristic or quality of the goods/services, like Netflix for streaming or Coppertone for sunscreen.
They require a bit of imagination to link to the product, making them protectable but not as strong as fanciful or arbitrary marks.
4. Descriptive Marks (Not Ideal)
These marks directly describe the goods or services, like Tasty Donuts for a donut shop.
Descriptive marks can’t be trademarked on the Primary Register unless they’ve acquired distinctiveness through use over time (secondary meaning), which can be tricky and takes effort.
5. Generic Marks (Weakest)
These marks are too generic and refer to the product itself, like Computer for a computer store or Milk for a dairy product.
They can’t be trademarked because they don’t serve as a unique identifier.
In short:
Best for trademarking: Fanciful, Arbitrary, and Suggestive marks.
Avoid: Descriptive and Generic marks. They’re harder to protect!
Some things just aren’t eligible for trademark protection. Here’s what won’t make the cut:
Generic Terms: Words that are too common, like “coffee” or “computer.” They can’t be owned by one business.
Descriptive Terms: Trademarks can’t just describe your product. For example, “Fresh Donuts” for a donut shop is too descriptive to be trademarked on the primary register but they may be trademarked on the supplementary register.
Surnames: Using your last name, like “Smith’s Bakery,” usually won’t work unless you’ve built a well-known brand, but they may be trademarked on the supplementary register.
Geographic Names: Places, like “Paris Pizza,” can’t be trademarked unless they’re tied to something unique and special.
Functional Designs: If something is mainly useful and not unique, like the shape of a tool, it can’t be trademarked.
Similar to Existing Trademarks: If your trademark is too similar to someone else’s, you’re out of luck.
Registering your trademark can provide several benefits and protections for your business. Here are some reasons why you should consider registering your trademark:
Exclusive rights: Registering your trademark gives you the exclusive right to use the mark in connection with the goods or services you offer. This means that no one else can use a similar mark, which is likely to cause confusion in the marketplace.
Legal protection: Registered trademarks are protected by law, so if someone tries to use your trademark without your permission, you can take legal action to stop them.
Increased brand recognition: A registered trademark can help increase brand recognition and customer loyalty. It allows your customers to easily identify your products or services and distinguishes them from competitors.
Asset value: A registered trademark can be a valuable asset for your business. It can increase the value of your brand and may even be licensed or sold for a profit.
A federal trademark application is filed with the USPTO and a state trademark is filed with a state governing body.
A state trademark might be right for you if:
You only do business in one state and don’t need nationwide protection.
You want a cheaper and faster process.
You’re still developing your brand and don’t yet qualify for federal registration.
However, if you’re planning to expand or need nationwide protection, a federal trademark is the way to go. It offers stronger protection and legal remedies across the U.S.
In short:
State trademark = Local protection.
Federal trademark = Nationwide protection.
If someone uses your trademark without permission, you can take several actions:
Cease and Desist: Send a formal letter requesting they stop using your mark.
Negotiation: Engage in discussions to resolve the issue amicably.
Legal Action: If necessary, file a lawsuit in federal court to protect your rights.