Trademark Guide: Understanding How to Get a Trademark

A trademark is a registered legal protection for a word (or group of words), design, logo, color, or symbol that identifies a company and its goods. Trademarks are distinctive signs that help consumers recognize and distinguish certain a brand’s products and services from the other brands in the marketplace. Securing a registered trademark for a business’ logo or name protects the business from competitors in the marketplace who may potentially infringe on their intellectual property.

The United States Patent and Trademark Office (USPTO) is the federal organization that registers trademarks to protect a brand’s intellectual property and help keep companies safe from infringement. A federal trademark registration must be renewed every ten years, and only the trademark owner has exclusive rights to the use of the trademark (unless another entity pays for its use). A federally-registered trademark is identified by the ® symbol, while the superscript ™ (trademark) or ℠ (service mark) can be used before you file a trademark, or when you are in the application process.

In order for your trademark to be accepted by the USPTO, it must be sufficiently unique in order to diminish the likelihood of confusion with other brand names. When you’re applying for a trademark, the USPTO breaks them down into five categories according to their strength and uniqueness.

1. 1. Fanciful mark: A fanciful mark is a unique, made-up word or symbol which describes your brand. Fanciful marks carry the lowest risk of being similar to a trademark that already exists, which can make a potential case of trademark infringement stronger. A fanciful mark is the easiest trademark to obtain federal registration.
2. 2. Arbitrary marks: An arbitrary mark is a word that already exists, but the definition is not associated with the meaning. They don’t describe your service in any way, but because arbitrary marks are typically words that already exist, they may be easier for people to remember. Arbitrary marks are the second most likely ones to pass federal registration standards.
3. 3. Suggestive mark: A suggestive mark may imply what your product does, but does not spell it out. This is the third most likely trademark to be accepted by the USPTO.
4. 4. Descriptive marks: Descriptive marks are brand names or logos that describe what the product is. These types of marks are the most likely to overlap with other trademarks in the field, and are less likely to be registered by the USPTO.
5. 5. Generic marks. Generic marks merely state what your product or service is, and cannot obtain trademark status within the US.

Here is the list of things that can be trademarked by the USPTO.

• Brand names: A distinct brand name that is unlike other names can be eligible for a registered trademark.
• Logos: Symbols or images for your business that are unique and distinguishable from other logos may also be trademarked.
• Colors: Colors may only be trademarked if they are a distinguishing element of the product. For example, if your product’s color helps people in the marketplace recognize it, then a color may be available to be trademarked.
• Phrases: Trademarked phrases are only protected within the brand’s specific class of business, and must be used for commercial purposes—like a slogan. Common, everyday phrases are also not eligible for trademarking.

While some words and phrases can be trademarked by the US Patent and Trademark Office, there are a few things that are not eligible for trademark registration, such as:

• Proper names or likenesses: A person’s name, identifiers, or image cannot be trademarked for commercial purposes.
• Generic terms or phrases: Regular, everyday words and phrases cannot be trademarked. For example, the word “tissue” cannot be trademarked, but the name of a brand that manufactures tissues can. Vulgar language like curse words cannot be trademarked.
• Government insignias: Government symbols like ones used for the National Security Agency (NSA) or the United States Air Force (USAF) cannot be trademarked.
• Inventions: While inventions cannot be trademarked, patents can be filed to protect tangible, innovative works or designs.
• Creative works: Like inventions, original works cannot be trademarked. However, they can be protected by copyright filed at the US Copyright Office.
• Smells: Specific scents cannot be trademarked if the scent is the main purpose of your product, such as a perfume. However, if a product’s functionality is not tied to its smell, it is eligible for a trademark.

A registered trademark can help protect your business from trademark infringement within the country of filing. To learn how to obtain a trademark, see the steps below:

1. 1. Think of a unique trademark. Keep in mind that the USPTO is more likely to grant your logo, brand symbol, or name the federal trademark registration if your intellectual property is entirely unique. Think of a novel name for a fanciful trademark, or an unrelated symbol for an arbitrary trademark. Avoid names and logos that contain distinctive characteristics or definitions of your product.
2. 2. Do a trademark search. Do an online search to make sure that your desired trademark is not currently in use before you start your trademark application process. Choosing a trademark that is too similar to an existing one may open you up to potential liability. You may also be denied intellectual property rights if there is a likelihood of confusion with your trademark name and an existing one.
3. 3. Identify your trademark. Use the USPTO trademark manual to identify and classify the types of goods and services you offer. The more classes you add, the more expensive your application will be. Keep in mind that additional goods cannot be added to the application once it’s filed.
4. 4. File your trademark application. As of 2020, all trademarks must be filed through the Trademark Electronic Application System (TEAS). This is where you will file your trademark application. If you already have a business, but you have not yet completed a trademark application, you may be protected by common law trademark within a certain geographic area. However, obtaining a proper registration will keep your business protected under trademark law throughout the country.
5. 5. Pay the filing fee and monitor. Once you’ve paid to register your trademark, you must monitor your application’s progress every few months through the TEAS to keep up with additional filing deadlines.

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