Legal advice from an experienced, knowledgeable trademark attorney can be a sort of “secret weapon” when it comes to protecting your brand and its intellectual property, whether it’s a new business or generations old.
You’ve worked hard on developing your brand. If your business uses a certain word, phrase, or design to promote your products or services, filing a trademark is probably the logical next step.
But if you’re like many business owners, you may not be entirely clear on what that entails. You may feel uncertain about where to start, or even whether a trademark is really the right move for your business.
If protecting your intellectual property has you feeling a bit lost, you’re not alone. Even global giants like Apple and Adidas have experienced their share of corporate confusion and missteps as to what can—and can’t—be trademarked.
Here are five common questions about trademark registration, along with answers from a trademark attorney.
What is the difference between a trademark, copyright, and patent?
Before we get into the details of trademark registration, it’s important to talk about trademark as it pertains to intellectual property.
Intellectual property is any intangible work or creation resulting from creativity, such as company and product names, slogans, taglines, logos, symbols, brand colors, and more. And because no business wants someone else to take credit for (or profit from) their creative ideas, it’s important to protect that work.
But not all types of intellectual property are the same. You know the saying, “all thumbs are fingers, but not all fingers are thumbs?”
So it goes with different types of intellectual property. In the arena of intellectual property, there are trademarks, copyrights, and patents. Each one protects a distinct type of intellectual property.
Trademark
Trademarks protect designs, logos, phrases, or words that distinguish a particular brand from others like it in the marketplace. This prevents the trademark—along with anything that is too similar—from being registered by another business, entity, or individual.
Famous examples of trademarks include:
Google®
Coca-Cola®
The McDonalds® golden arches design
Just do it®
Copyright
Copyrights protect original works such as artwork, literature, music, movies, photographs, and more. This guards the work against being reproduced, copied, or exploited without permission from the copyright holder. Unlike trademarks, copyrighted works often exist in a tangible form such as paper, film, or digital format.
Examples of copyrighted works include:
Song lyrics
Architectural drawings
Software code
Paintings and sculptures
Patent
Patents protect new discoveries and inventions, such as pharmaceutical drugs or new machinery designs. Like trademarks and copyrights, obtaining a patent on your intellectual property prevents others from copying, making, using, or selling the new invention without permission.
Examples of patents include:
iPhone
3D printer
The Wright brothers’ airplane design
The lightbulb
When is it time to file a trademark application?
It’s never too soon to start thinking about your trademark. In fact, many small business owners experience great success by considering which elements of their brand are eligible to be trademarked before they even begin marketing their goods and services for sale.
Before you get too invested in your trademark, it’s always a good idea to conduct a trademark search. This way, you can avoid sticky situations by making sure your mark isn’t already in use by another company—and it can also help you avoid investing too much time, resources, or energy into a trademark that is already spoken for.
Seal of the United States Patent and Trademark Office; image by U.S. government, public domain.
Once you’ve landed on your trademark, and as soon as you start using it to represent your brand, it’s time to file a trademark application. At this point, you’ll have common law rights based solely on using your trademark in commerce within your geographic area, but your rights will be limited to that exact location.
On the other hand, registering your trademark at the state or federal level protects your intellectual property on a broader level, allowing you to expand your brand’s geographic reach with the assurance that you’re protected against copycats or accidentally committing trademark infringement—the unauthorized use of another company’s trademark.
Does my trademark protect me in other countries?
No, your trademark does not automatically protect you abroad, as trademark protection is generally location-based. A national trademark is limited to the country where the trademark is registered, and currently, there’s no such thing as a “world” or “global” trademark.
Business owners must register for foreign trademarks in each country or jurisdiction where the brand does business. Each nation’s trademark office will review your application and decide whether your trademark should be registered in that country.
Fortunately, the Madrid Protocol, an international trademark system, makes it possible to expand your business internationally with less paperwork. Under this treaty, you can apply for a trademark in as many as 100 countries with a single application. The result is not quite a “global” trademark, but the reach is still quite significant, with results in up to 130 countries.
How long does it take to file a trademark application, and how long does the trademark last?
The United States Patent and Trademark Office (USPTO) currently advises business owners to plan for the trademark registration process to take anywhere from 12 to 18 months—and that’s assuming all paperwork is filed correctly and all deadlines are met.
Though a year-long queue can feel unending in the moment, trademark registration is worth the wait. Once registration is complete, your phrase, word, or design will be protected indefinitely, as long as you renew it every ten years and actively use it in commerce.
How can a trademark attorney help me?
While you’re not required to use an attorney to obtain common law rights to your trademark on a local level, an experienced trademark attorney’s advice and guidance can be invaluable if you plan to expand your business.
The benefits of using a trademark attorney include:
Reducing the risk of trademark infringement through thorough trademark research and appropriate due diligence
Assistance with preparing and filing the complex, time-sensitive trademark registration application and any unnecessary delays due to avoidable trademark mistakes
Responding to—or, in some cases, raising—legal objections under the USPTO
Trademark law and trademark registration can be extremely complex, but a good trademark attorney will make the process as fast and easy as possible. Legal advice from an experienced, knowledgeable trademark attorney can be a sort of “secret weapon” when it comes to protecting your brand and its intellectual property, whether it’s a new business or generations old.
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