A trademark is a name, symbol or other device (called a “mark”) used to identify a product or service which is legally restricted to use by the owner. A business may obtain trademark protection by merely using a name or logo. In fact, you may place “tm” after your business name or on any product which your business is currently using as it’s trademark, provided the mark is being used in “good faith.” However, you may only use the “®” symbol after your mark has been registered by the United States Trademark Office.
Having your trademark registered provides much greater protection for your business or product name. Further, failure to register your name or logo could result in a loss of your right to expand your business outside of your current location. As a result, the cost for filing a trademark application is often far less than the cost of not filing for trademark protection. As your business grows, it will acquire a wide variety of assets ranging from office furniture to inventory. However, what many people are unaware of is that their intellectual property rights are often the most important asset of the business.
For many businesses, trademark protection is more important than patent, copyright or trade secret protection. It is often the most valuable asset of the entire business, yet many business owners neglect to file for trademark registration with the United States Trademark Office. Failure to do so may limit the businesses ability to expand to additional locations. Further, failure to file for trademark registration may allow competitors with similar marks to co-exist in the marketplace. Filing for trademark registration may be the smartest investment a business can make.
A common misconception many people have is that having their business name approved by their state provides them with trademark rights. Unfortunately, this is not the case. When you file articles of incorporation in your state, your state is generally concerned about identical or nearly identical business names. This does not provide you with exclusive rights to the business name. In fact, merely using the name granted by the state may subject you to trademark infringement claims from a business inside or outside of your state.
The standard of review for a name at the Secretary of States office is a completely different standard of review from that at the United States Trademark Office. The Trademark Office is mainly concerned about “likelihood of confusion.” Thus, the Secretary of State might approve “Alex’s Muffler Shop” even though there is a business in your state called “Alexander’s Muffler Shop.” This would almost certainly be denied by the United States Trademark Office. Therefore, in order to best protect your business name, an application for trademark registration should be filed in the United States Trademark Office. Preferably, a trademark search should be conducted prior to filing the articles of incorporation. It is also possible to file a trademark application for a product name, business name or slogan which you plan on using in the future. These are called “Intent to Use” applications. They allow you to file an application if you have a good faith intent on using the mark in the future. Intent to Use applications can be renewed for up to three years. Use of the mark must be established within those three years.
For more information on trademarks visit: www.uspto.gov