08/ 01/ 2008
by Zeke Roeser
Everyone has had the experience: The dark lightbulb above your head suddenly flashes brilliantly, and you’ve come up with the perfect phrase, artistic design or made-up word to distinguish your company’s product. Now you need to protect that idea.
But you may know little about trademarks, much less the difference between the ubiquitous ™ and ® symbols. Luckily, trademarks are far simpler than most people think. With just a few steps, your company can be on its way to prosperity—and cultural relevance—in short order. Here’s how to get started.
The basics
According to the U.S. Patent and Trademark Office, a trademark is a legal device used to protect "words, names, symbols, sounds or colors that distinguish goods and services from those manufactured or sold by others and to indicate the source of the goods."
The lettering of Coca-Cola, and McDonald’s golden arches and "I’m Lovin’ It" ad campaign phrase are all trademarks. Phrases must identify the maker and distinguish the product from other similar products. "A mark that does not perform the role of identifying a source is not a trademark," explains Las Vegas trademark attorney Ryan Gile.
There are two kinds of trademarks: registered, denoted by the ® symbol, and unregistered trademarks, which use the ™ symbol. Both are protected from infringement, but registered trademarks offer some special advantages. If you have a registered trademark, you will be able to sue in federal court for infringement, obtain registration in foreign countries and file the mark with the U.S. Customs Office to prevent the importation of infringing goods. Also, in any lawsuit, the court will presume that you have the exclusive right to use the mark commercially.
Unregistered trademarks are also protected by law, but to prevail in court, you may have to prove that you were the first to use the mark, which can be difficult and expensive.
How to obtain a trademark
Obtaining a trademark is as simple as searching the Trademark Electronic Search System and filling out an application. Both can be done online at www.uspto.gov.
If your trademark involves a graphic design, the PTO Web site will guide you through a series of applicable categories, such as celestial bodies, humans and animals.
Once you are satisfied that your mark is unique, you’re ready to apply. Depending on how you file your application, the filing fee runs from $275 to $375. Because you must strictly comply with the filing requirements, it may be wise (but not necessary) to consult a patent attorney.
If PTO finds that your registration doesn’t conflict with other trademarks, it will issue you a certificate of registration. This process generally takes around 12 weeks.
Once you have the trademark, use it. Any potential infringer will now be on notice that you own the registered word, phrase or design and are prepared to defend your rights in court.
America has some of the most protective intellectual property laws in the world, and it’s every small business owner’s right to put them to good use. For more information, visit the U.S. Patent and Trademark Office online at www.uspto.gov.
NFIB.com
For helpful tips on hiring a lawyer and more small business legal resources, visit the NFIB Small Business Legal Center online at www.NFIB.com/legal.
This article is from the August/September 2008 issue of MyBusiness.
