The Importance of Trademarking

The Importance of Trademarking

When starting your own business, trademarking is essential to ensure smooth operations. Handling legal matters on your own might seem intimidating, but trademarking is not as scary as it seems.

Here are the basics.

What is a trademark?

A trademark can be a symbol, logo, word, slogan, or a name registered to your company. It protects your image and prevents other businesses from infringing on your intellectual property.

Trademarking is the best way to distinguish your business from competitors. Failing to register a trademark may result in loss of rights to your idea, artwork, and creative energy.

While trademarks prevent other businesses from infringing on your ideas, their main legal purpose is different from other forms of intellectual property. Patents and copyrights aim to claim ownership of a product, whereas trademarks aim to protect customers from confusion between companies or services.

Why run a trademark search?

A trademark search is vital because using a slogan, word, or logo already in use by someone else can lead to a lawsuit for trademark infringement. This can result in significant financial setbacks and necessitate a complete rebranding.

If someone proves that you are guilty of trademark infringement, possible outcomes include:

  • A court order to stop using the trademark
  • An order requiring the destruction or forfeiture of anything associated with the accused mark
  • Monetary relief, including your profits, damages to the plaintiff, and legal costs
  • An order to pay the plaintiff’s attorney fees in certain cases
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None of these consequences are desirable when starting or running a business. Hence, it is imperative to clear the availability of your name, logo, or slogan before it is too late. You can conduct a registered trademark search here.

It’s important to note that the more distinguishable two companies are, the less relevant trademark similarity becomes. For example, a taco restaurant and a tire shop having similar or identical trademarks would not confuse consumers. However, two boutique shops with the same trademark could create a significant conflict.

RegisteredⓇ versus unregistered™ trademarks

A federally registered trademark, such as Nike and Coca-Cola, is recognized across the country and must be registered through the U.S. Patent and Trademark Office. An unregistered or common law trademark holds enforceable rights only within the geographic region or locale where the trademark owner uses it in business.

To establish a common law trademark, you simply need to use your trademarked logo or slogan (after ensuring it is not already in use). Your trademark is subject to "common law" respecting its use wherever you conduct business, whether in a city, state, or throughout the country. No paperwork or fees are involved.

If you want the trademark to be federally recognized, however, a lengthy process of about six to 12 months must be followed. You must file a trademark application, either a "Use in Commerce" application if you are already using the trademark, or an "Intent to Use" application if you plan to use it in the future. The application takes about three months before a trademark examiner is assigned to your case.

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If there is a potential conflict with your trademark, you will need to respond to an Office Action. This involves either changing your trademark or appealing to the Trademark Trial and Appeal Board. You have six months to respond, and if there are no conflicts, your trademark is posted on the Trademark Official Gazette. Here, anyone can see your trademark and potentially file an opposition. If an opposition occurs, an opposition hearing will be held to debate the trademark’s validity.

After overcoming these hurdles, your trademark will be registered. If you filed an Intent to Use application, you must prove that you are now using it. If someone else files an application for a trademark after yours, you will receive priority for the trademark.

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