Business Trademarks: What Your Small Business Needs to Know

Tuesday, November 12, 2013

This article will look at what a business trademark is (and what it isn't), how to make sure it's available for use, and how to register your logo for protection.

What is a trademark?

A trademark is a word, phrase, image, or other sign or signifier that connects a product or service to its source. (For services, the term "service mark" is sometimes alternately used.) It can be either registered or unregistered.

For example, the Pepsi logo is commonly recognized in conjunction with the company; if you saw the logo on the side of a soft drink or other product, you would know without a doubt that Pepsi-Cola is responsible for that product.

How can you be so sure? Federal law states that no other company would be able to use the logo on their own product, since this would cause confusion in the eyes of the public.

(Fun fact: Trade and service marks have ancient origins! Blacksmiths, weavers, and other producers of high-quality merchandise used to place a unique symbol on their work so their customers could be assured they weren't purchasing a cheap knock-off a premium prices.)

How does a trade or service mark differ from a copyright?

While both types of intellectual property protection can cover a logo, the scope of this protection varies slightly.

Trade or service marks protect the connection between the logo and the company, the product and the source.

Copyrights protect the unauthorized use, display, or reproduction of an image, regardless of its connection with a product, service, company, or similar.

(Fun fact: Not all trademarks are eligible for copyright protection. For example, "names and short phrases" cannot be copyrighted, so business names and slogans could only be trademarks. And a logo made primarily out of text typically cannot be copyright protected as an image; to be eligible, there would need to be a significant amount of original authorship outside the use of letters.)

How do I know if my logo is already in use?

First, it must be said that it is exceedingly difficult to track down all potential matches, simply because by its very definition there is no central database in which all unregistered trademarks are recorded (because they're unregistered). However, there are a few places that you can look to greatly reduce your chances of infringement:

Internet Search

Just by running Google and other search engine searches of the trademark in question, as well as any potential alternate spellings, you will narrow down a great deal of your search, since in today's world most businesses have some sort of an online presence. (And while you're at it, it's not a bad idea to see if your trade or service mark is available as a domain name; just type "trademark".com, -.net, and -.org into your browser and see what comes up!)

ThomasNet

Calling itself "an industrial search engine, this is a database maintained by Thomas Industrial NetworkSM, a leader in industry and product information. This is one of the largest sources of unregistered trade and service mark information in the country.

Network Solutions

This database is like ThomasNet, but for domain names. If a person or company has reserved a domain name, you'll be able to find out -- and you can presume that a domain name for a website used commercially is a business trade and service mark.

Business Records

Unregistered trade and service marks are going to be more of a concern if they're in use in your industry and in your geographical area, so it isn't a bad idea to check your Secretary of State's database of registered businesses. Depending on your state, your County Clerk may also hold its own separate registry of unincorporated businesses.

How do I register my trade or service mark?

It's probably clear by now that its much less problematic to register your business trade or service mark, creating an official record of its commercial use.

The US Patent and Trademark Office is the government entity in charge of these registrations (and, unsurprisingly, patents as well). However, it is generally a good idea to go through an attorney familiar with intellectual property and commercial law, as the application process can take up to two years and is very complex. There are also many excellent third-party companies that can apply with the USPTO on your behalf.

For further reading, the USPTO provides a wealth of great information on the topic.