What is a trademark? A trademark, is a business name, brand name, logo, slogan, or other distinctive sight, smell, or sound that identifies a particular brand (company products or services). Trademarks and service marks are intellectual property. There are two kinds of marks that can be registered. First, there are marks in the form of a word, phrase, symbol, design, or a combination of these things that identifies and distinguishes the source of the goods from the goods of others. Second, there is a version for services – called a service mark.
What is a service mark? A service mark is the same as a trademark except it identifies and distinguishes the source of a service instead of goods. Check out our article, the differences between trademarks and service marks.
Trademarks and service marks protect business names, brand names, logos, slogans, or other distinctive sights, smells, or sounds used to identify your goods or services.
Carson Patents®
Trademarks and service marks protect business names, brand names, logos, slogans, or other distinctive sights, smells, or sounds. You are not required to register trademarks or service marks. However, trademark registration offers at least three advantages: it is the notice to the public of your claim, a legal presumption of ownership nationwide, and the protectable exclusive right to use the protected mark on your goods or services. Here are links to details on the kinds of trademarks and details on using a trademark.
A trademark can potentially last indefinitely in the form of an unlimited chain of ten-year periods. In other words, a trade or service mark can last forever (like the business it is attached to) provided the legal requirements for post-registration maintenance and renewal are timely filed and paid every ten years. In the United States, registered trademarks are listed on the USPTO’s Trademark Electronic Search System, or TESS. We highly recommend searching TESS for your new business name when setting up a new business to determine availability of trademarking it.
Important Tip: Registration of your trademark is not required. Your use and registration with your state includes trademark rights. Registering your trademark is requesting the USPTO approve your use of the mark. It does not equate to paying to purchase a trademark. Registering your trademark does not mean you acquire legal ownership of the mark, you can stop others from using the mark, or people owe you royalties if they use the mark. Check out our article on famous recognized trademarks.
6 Types of Marks Used to Register a Trademark
- Fanciful Trademarks – Fanciful trademarks are invented names different from anything else that currently exists. These types of trademarks are typically the strongest as they do not have much competition. Some examples include: Nike, Adidas, and Xerox.
- Arbitrary Trademarks – Arbitrary trademarks are real words that can be found in a valid dictionary that do not have any specific association to the goods or services being represented by the mark. On example is Apple.
- Descriptive Trademarks – Descriptive trademarks directly describe the product or service being represented by the trademark. If the mark does identify characteristics, there must be evidence of acquired distinctiveness in order to register. This acquired distinctiveness must prove the mark went from what the brand represents to who the brand represents.
- Generic Trademarks – Generic trademarks are extremely broad. In order to still be eligible for registration, a generic trademark must include specific detail such as an ingredient or characteristic of the product or service. This typically leaves this type of mark as unregisterable. One example is The Tire Shop.
- Suggestive Trademarks – A suggestive trademark implies a characteristic or feature of the product or service the trademark is representing without giving away any further details. This type of trademark does not require a secondary mark meaning. One example is Jaguar.
- Trade Dress Marks – A trade dress mark is trademark that is the identifying feature of a product. This is commonly used for specific identifying things such as the packaging elements. Famous trade dress marks include the Coke bottle and the Listerine Mouthwash bottle.
Kinds of Marks that can be Registered as Trademarks
Trademark examples include a business name, brand name, logo, slogan, or other distinctive sight, smell, or sound you are using to identify your goods and services. There are two kinds of marks that can be registered with the USPTO as trademarks: standard character mark and special form mark. You can apply for both, however, each mark to be registered requires a separate application.
Standard Character Mark – How to Trademark a Name
A standard character mark is a specific arrangement of words, letters, or numbers. For example, look at our business name Carson Patents. Our corporation’s name, Carson Patents, is trademarked. Our mark is protected regardless of how the text is displayed because it is registered as a standard character mark. If your logo only consists of only a business name or slogan, a standard character mark might be ideal.
The advantage of a standard character mark is flexibility in how you display your trademark (i.e. the colors you use, the style, or font).
Special Form Mark – How to Trademark a Logo
A special form mark is an image or a logo which can consist of a specific font, design, layout, or a combination as well as a graphic or image in nearly any configuration. Trademark applications for a special form mark must include an image of your mark. Importantly, the image submitted is the mark protected if the application is granted. You need to make sure that you submit your logo exactly as you want it protected. If your logo consists of only a logo and business name or slogan, a special form mark might be ideal.
The advantages of a special form mark is protection for an illustration or a combination of an illustration and text in a specific font. While these marks can include a full color scheme, it is recommended that a black and white version be registered so that all colors can be used and protected with the mark.
Using a Mark – What is a Trademark in Business
A trademark includes the small symbol that can be found after the logo, brand, or business name. You do not have to use the “™” or “®” text next to your mark. However, when your logo, brand, or business name is trademarked, you can use them if you want. Using the “™” is governed by local, state, or foreign laws. Check with an attorney licensed in your state or a lawyer practicing intellectual property law. Check out our trademark registration best practices article.
The letter ‘R’ inside a circle, the “®” symbol, is the federal registration symbol. You can use this symbol if your mark is registered with the USPTO. There are two different registrations. If your trademark application is granted, the mark will be listed on the Principal Register on TESS, and then you can use the “®” mark. If your mark is denied, it may still be possible to get on the Supplemental Register and be listed on TESS, and then you can use the “®” mark. When your mark is listed on either the principal register or the supplemental register, you can use the “®” mark.
For example: Carson Patents is trademarked. Carson Patents is listed on the supplemental register at the USPTO. Thus, we can, and frequently do, use the “®” symbol at the end of our name. As seen at the top of every page of our website, we include the “®” after our name in our logo (“Carson Patents®”). Check out our articles about business name branding and the best practices of brand selection.
Registering a Trademark Internationally under the Madrid Protocol
Trademarks are territorial, meaning you must file each mark separately in each country you wish to have protection in. A worldwide trademark registration office does not exist. However, there is an international application available under the Madrid Protocol that can make the process of getting your brands trademark registered in multiple countries easier and less costly.
For international trademark protection, there is the Madrid Protocol. After a national application is filed (basic application) or issued (basic registration), the Madrid Protocol offers a single international application to seek protection for the mark in other countries. It is a cost-effective, efficient, and centralized way for a trademark owner to seek international protection for a mark. The process is filing one international application in “the office of origin” where the applicant is a citizen. The office of origin for U.S. nationals is the U.S. Patent and Trademark Office (USPTO) almost always.
WIPO Madrid allows you to register your trademark in 124 countries by filing a single application. The Madrid system is centrally managed worldwide by WIPO. Madrid provides a centrally managed system to apply for and get trademark protection. You will need to use an existing national or regional application that you already have on file. In addition, you can replace your national or regional registration with an international registration. “Replacement” is easy and automatic when you file for international registration of a granted national mark. Protection is renewed in ten-year periods directly with WIPO and having effect in all designated contracting parties (124 countries) around the world.
To use the Madrid system, according to WIPO, “you must either: be domiciled, have an industrial or commercial establishment in, or be a citizen of one of the 124 countries covered by the Madrid system’s 108 members.” The fees to register an international trademark include a basic fee and additional costs that depend on where and in how many classes you want protection.