10,000 Foot View of Trademarks

Creative businesses often think that trademark protection is only available to big companies, but a trademark is a valuable asset, no matter the size of your creative enterprise.

Trademarks are like a badge that tell consumers where a product or service came from. This badge can consist of a combination of words, names, symbols, or devices. For example, Nike comes to mind when you see the word "Nike", when you see the "swoosh", or when you hear the phrase "Just Do It." Once you use this badge in commerce, you gain trademark protection and can prevent others from using the same badge to market similar goods or services.

What do I mean by similar goods and services?

In the U.S., your badge could fall into one of 45 categories of goods and services. A trademark owner can stop someone else from using a similar badge only if they are in the same category. For example, an airline, a faucet company, and an insurance provider use the word “Delta”. Why can all of these companies use the badge "Delta"? Because consumers are not going to assume that the person flying them to Grandma's house for the holidays is also helping them get their teeth cleaned and making the faucet in Grandma's kitchen sink.

Why can you prevent others?

Remember trademark law is about consumers. It allows consumers to know what to expect when they see a specific badge (e.g. what the quality will be or what experience they can expect). Because of this, badge owners can prevent others from trading on their badge and presenting a different outcome to consumers.

How should you pick your trademark?

Since trademark protection allows us to stop others from using a similar badge, the first step it to eliminate generic or descriptive phrases. For example, I couldn't expect to get a trademark for my house painting business called "Kiffanie's House Painting Service." The further you move away from generic or descriptive phrases, the stronger the protection becomes. For example, Exxon is a made-up word as such it has strong trademark protection. Words not associated with the goods or services (like Apple for computers) also have stronger trademark protection.

We also need a badge that is different from other badges within our category of goods and services. So, the next step is to do a little research to make sure there aren't any similar badges. What to look for? Things that would confuse a consumer. For example, do they sound the same, do your logos look alike, and are you using the same color scheme?

When can I register my trademark with the U.S. Patent and Trademark Office?

The first step is to use your badge in interstate commerce (e.g. sell your goods or offer your services across state lines). The Internet age has made this requirement much easier for creative business owners. For example, if I sell prints to shops in San Francisco, New York City, and Portland, I've met this requirement. While you can file your application for a trademark with the U.S. Patent and Trademark Office before you use the mark in interstate commerce, you cannot get registration for your badge until you use it.

Monitoring Use of Your Trademark

Once you decide that you want to use something as a trademark, you must actively monitor use of this mark by others. One cheap and simple way to do this is to set up a Google Alert for your trademark. This way anytime your mark appears on the Internet, you'll be automatically notified.

That wraps up our 10,000-foot view of trademarks. Are you interested in obtaining a trademark? What areas would you like us to discuss in more detail?


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