A strong trademark helps you establish a successful brand that stands out from the competition. But many small business owners don't even think about trademark protection until after they've been in business for months, or even years.
This approach can backfire in a big way. While it's true that you can apply for federal trademark protection at any time, there's no guarantee your trademark will be approved for registration, even if you've spent a lot of time and money building your brand.
The best strategy is to think about trademarks from the very beginning—ideally, when you're choosing your business name and logo and forming your business entity.
How trademark searches help you establish a strong brand
Your business name can form the core of your brand, and it can also create serious trademark issues.
If you choose a name that's too similar to an existing trademark, you may be unable to register your trademark with the U.S. Patent and Trademark Office (USPTO). The other trademark owner may threaten a lawsuit if you continue to use the name. Then, to resolve these issues, you may have to change your brand name. This means losing your name recognition and potentially spending tens of thousands of dollars on new signs, labels, marketing campaigns, and everything else you'll need to rebrand your business.
The best way to avoid this is to do a trademark search before you commit to a name and spend money marketing it. A comprehensive trademark search will tell you whether there are any “confusingly similar" trademarks that might pose problems.
As the phrase suggests, a “confusingly similar" business name has the potential to confuse customers because it looks or sounds like your name, and it's used on goods or services related to the ones you offer. For example, Delta sinks and Delta faucets are probably confusingly similar because sinks and faucets are related. But Delta faucets and Delta airlines are not.
Deciding whether to register your trademark
You don't have to register your trademark with the USPTO in order to have some trademark protection. Unregistered marks may have “common law" protection in your immediate locality, or you may be able to register with your state for statewide protection.
But neither of these are nearly as strong as a federal trademark, which extends nationwide and paves the way for foreign registrations. A federally registered trademark also allows you to file a trademark infringement lawsuit in federal court and register with U.S. Customs and Border Protection to block imports of infringing goods.
Registering a trademark before you use it
In general, you must use a trademark in your business in order to have trademark rights.
But the USPTO offers a way for businesses to preserve their right to use a trademark in the future. When you file a trademark registration application, you must either apply based on “use in commerce" of your trademark, or “intent to use." When you file on an “intent to use" basis, it means you aren't using your trademark yet, but plan to use it in the near future.
No matter what filing basis you choose, the USPTO will process your application, check for conflicting marks, notify you of issues to be resolved, and hold a public opposition period. If you file on an “intent to use" basis, then, once these hurdles are cleared, you will receive a Notice of Allowance (NOA)—sort of a conditional approval. You will need to begin using your trademark and submit additional paperwork to complete the federal registration process.
Applying early on an “intent to use" basis means you don't risk having another business register a similar trademark while you are busy getting yours off the ground.
If you're already in business and thinking about trademarks for the first time, you can still do a trademark search and apply for the expanded protections of federal trademark registration. But when it comes to protecting your trademarks, the sooner you begin thinking about protection, the better.
FAQs
When should you trademark a brand? ›
Trademark owners should consider registering trademarks with the USPTO if they're used in interstate commerce or with a retail product, if they are expanding nationally or if they are worried that they might be used by a competitor, according to legal website Nolo.
Do you trademark before or after LLC? ›So, the LLC MUST exist before the trademark is filed. Every trademark has an owner, and the owner is usually the person or business that is using it. LLC comes first when you want to use the trademark for your business, and you're going to form an LLC because the LLC will be the owner of the trademark.
Should I trademark my logo before using it? ›To protect yourself nationally, it is best to register for a federal trademark. And in case of a lawsuit, your trademark registration provides a documented start date for your use of the mark.
Should I trademark my brand name? ›Your brand is your company's identity, so it's critical to secure it with a trademark, which prevents someone from improperly using your business name or branding. To get a trademark, you'll need to file an application with the United States Patent and Trademark Office (USPTO).
How long does a trademark last? ›Unlike patents and copyrights, trademarks do not expire after a set period of time. Trademarks will persist so long as the owner continues to use the trademark. Once the United States Patent and Trademark Office (USPTO), grants a registered trademark, the owner must continue to use the trademark in ordinary commerce.
How much does it cost to get trademark? ›The government fees for trademark registration is Rs. 9000 per application per class for company. The government fees for trademark registration is Rs. 4500 per application per class for individual.
Can a LLC have same name as trademark? ›Yes, with some exceptions. When you're forming a corporation or an LLC in a state, the name must be unique to your business within that state. Others can form LLCs and businesses in other states that have the same name as yours. If you want to protect your business name across all states, you will need to trademark it.
Can I trademark my business name and logo at the same time? ›Registering your name and logo together is comparable to ONE trademark in the eyes of the USPTO. Therefore, an infringer would have to use both your name and logo in order to constitute legal infringement. According to the USPTO, you actually don't own your name or your logo individually.
Can I trademark my logo later? ›You can also register a trademark for your logo with the Secretary of State in the state where you will be using the logo. Doing so protects your rights only within that state, so the logo can be used by others in other states. The third and most expensive option is to file a trademark application with the USPTO.
Is my logo automatically trademarked? ›Determine Whether You Need a Trademark
Once a business begins to use a logo to advertise and sell goods or services, they automatically attain common law ownership and the limited protections associated with it—but only if the business can prove it was the first businesses to use the mark.
What happens if I don't trademark my name? ›
Without registering your brands, names and logos as trademarks you do not necessarily have the right to use them. Secondly, which follows from above, is that without trademark registration then through use and promotion of your names and logos you might be inadvertently infringing somebody else's registered trademark.
Do I need to trademark my small business name? ›Registering your trademark is especially important if your business is participating in e-commerce, as it is possible to not register with the USPTO if you choose to just operate in a small geographic area, as common law will automatically protect your business name and logo within the state you choose to operate in.
Is a trademark worth money? ›Trademarks can have no value, or can be very valuable indeed – it all depends on the business associated with the mark!
Do you lose a trademark if you don't use it? ›You can lose a trademark in a variety of ways. You can lose a mark through abandonment. A mark will be considered abandoned if you stop using it for three consecutive years and you have no intent to resume its use. You can also lose a mark through improper licensing or improper assignment.
Does trademark increase value? ›The more your trade mark is used, the more exposure it receives, the more goodwill it will generate, and that goodwill increases the value of the trade mark.
What is the cheapest trademark? ›One of the easiest and cheapest ways to register a trademark in the USA is through Trademark Electronic Application System (TEAS). TEAS is USPTO's online trademark filing system and the cost of applying online as compared to filing a trademark offline is $250-$350 to $750 respectively.
Do you copyright or trademark a logo? ›Generally, copyrights protect creative works, and trademarks apply to brand names, phrases, and logos. Copyrights primarily protect the rights of people who create literary, dramatic, musical, artistic, and certain other original works (like history tests, and software code).
What is the cheapest way to trademark? ›The cheapest way to file for a trademark is simply to do it yourself. You can start by searching for the United States Patent and Trademark Office's State (USPTO) website. Then file out the online forms and pay their fees. The process will cost you 300usd.
Should I trademark before selling? ›Ideally, you should file a trademark application before revealing your mark.
Is it better to copyright or trademark a business name? ›Copyright protects original work, whereas a trademark protects items that distinguish or identify a particular business from another. Copyright is generated automatically upon the creation of original work, whereas a trademark is established through common use of a mark in the course of business.
How do I make my brand legal? ›
Key takeaway: To register and trademark your brand name, search the TESS database for similar brand names, fill out the trademark application and submit it to the USPTO for review.
What happens if I trademark a name already in use? ›If somebody else is already using a mark that is reasonably similar to yours, it's likely that your application for trademark registration will be denied. United States trademark law requires trademarks to be entirely unique from any other than are currently in use.
How much does it cost to trademark a logo? ›Filing cost of a trademark application online
The USPTO prefers that applicants file electronically through the Trademark Electronic Application System (TEAS). The fees for electronically filed trademark applications generally range from $250 to $350 for each class of goods or services.
A brand is a name given to a product by its owner or manufacturer. A trademark is a term, phrase, or symbol that is legally protected by statute. A brand name is not protected legally. There is no legal obligation associated with the brand name.
What is the strongest type of trademark? ›Strong trademarks are typically creative or unique, setting you apart from your competitors. These trademarks include fanciful, arbitrary, or suggestive trademarks. Fanciful trademarks are invented words. They only have meaning in relation to their goods or services.
What Cannot be used as a trademark? ›Descriptiveness / lack of distinctiveness: Terms that literally describe items as they are ("tomato," "beer," "copper" or any other common word) cannot be trademarked as they must be reserved for general use. Similarly, marks that fail to indicate a particular commercial enterprise to consumers will not be registered.
What is the richest trademark in the world? ›In 2022, Apple was the most valuable brand in the world with an estimated brand value of about 355.1 billion U.S. dollars. Amazon, which was the second leading brand in the world, had a brand value of about 254.2 billion U.S. dollars that year.
How do I legally protect my logo? ›You may register a trademark for your logo with the Secretary of State in the state where your company is based. This protects your rights within that state, so the logo cannot be copied by brands in other states. The most expensive option is to file a trademark application with the USPTO.
What is the most common reason that a trademark might be rejected? ›The most common are: Likelihood of Confusion: The USPTO conducts a search for conflicting marks as part of the official examination of an application only after a trademark application is filed.
How long after a trademark can I publish? ›It still hasn't registered. It can take three to four months from the time your trademark publishes to when you receive official notification that your trademark has either registered or moved to the next stage. If your application is based on use in commerce, then your trademark will register.
Can someone steal your logo and trademark it? ›
Specifically, a logo can be trademarked to distinguish a company's goods and services from those manufactured or sold by others and to indicate the original source of the goods. As such, if a third party utilizes a protected logo and commits logo theft, they may be subject to both copyright and trademark penalties.
How long does it take to trademark a logo? ›Usually, the process takes 12 to 18 months. Registering your trademark is a complex procedure that involves your application moving through various stages. Learning about each stage in the process will help you understand why getting a trademark takes as long as it does.
Which is a good example of a trademark? ›Types of trademarks include: Brand names like Apple, McDonald's, and Dolce & Gabbana. Product names like iPod and Big Mac. Company logos like the golden arches at McDonald's and NBC's peacock logo.
How can I trademark my logo for free? ›There is no way to register a name trademark for free because you will always have to pay at least a small fee that covers the costs of examining and processing your trademark application. There is no way to get a federal trademark for free.
Is a logo a trademark? ›Your logo is a trademark that identifies the goods or services you're selling with your brand. Filing an application to register your trademark with the U.S. Trademark Office allows you to protect your trademark and prohibit others from using it on similar goods or services.
Can you sell a product without a trademark? ›You can sell products or offer services in the United States without having a registered trademark. So you might ask, why should I register my trademark? There are several reasons why registering your trademark is a good idea.
Can I sell on Amazon without trademark? ›You can sell multiple brands under one Amazon account, brand registered or not. You don't need to be Brand Registered to sell on Amazon.
Can I name my business the same as a trademark? ›Business names, product names, logos and labels can all be trademarks. You acquire a trademark by using your mark in commerce—in other words, using it when you conduct your business. For additional protection, you can register a trademark with the U.S. Patent and Trademark Office (USPTO).
Is an LLC automatically trademarked? ›Your formal business name chosen when you formed your LLC, corporation, or sole proprietorship isn't automatically your trademark. It only becomes a trademark if you use it to market your goods or services. For example, Franchise World Headquarters, LLC is the corporate name for Subway.
Does an LLC count as a trademark? ›LLCs and trademarks are each an integral part of the business world, but both serve different purposes. While LLCs are legal business entities that protect the personal assets of business owners from lawsuits and bankruptcies, trademarks protect the intellectual property of the business.
How do I assign a trademark to an LLC? ›
To change the owner of a federal trademark registration or application, a trademark assignment should be signed and recorded with the USPTO. A trademark assignment is a document signed by the original owner (“assignor”) that transfers ownership of the trademark to a new owner (“assignee”).
How do I protect my business name without a trademark? ›If you have a logo or symbol that is part of the business name, you can include pictures of the logo or symbol as part of the application. This ensures that the entire trademark – name and surrounding images – is registered. Registering with the USPTO is not required.
Will an LLC protect my logo? ›An LLC Does Not Protect Your Brand!
An LLC does not protect your brand name at all. You can have the LLC for the brand name but if someone else has the trademark for it, you may have to rebrand.