When do I need a trademark? Why is it important to register my trademark?

Trademarks…It seems such a foreign word but it is really part of our day-to-day life, especially nowadays with social media being a constant influence in our lives.  As discussed in our previous blog, as a general rule, any product of the human intellect is considered intellectual property and may be protected under the law.  But when do you need a trademark and why is it important to have one?

What is a Trademark?

A trademark is an identifier.  It is how people distinguish you in the marketplace from others (i.e., from your competition).  A word, phrase, symbol, design, or a combination of all can be a trademark that identifies goods and/or services you provide and is an essential part of your brand.

Trademarks are important in society because they identify the source of goods and/or services, provide legal protection to a brand and help guard against counterfeiting and fraud (available at The United States Patent and Trademark Office, www.uspto.gov (last visited December 22, 2021).

Think for a second about famous trademarks and how you can associate the products and services behind them.  Remember McDonalds’ golden arches?  How about the phrase: Just do it®?  Imagine the logo of your favorite car or how easy it is to find Instagram® on your phone while scrolling through your apps…

Be advised that you could even trademark a sound, a scent, or a color.  As a general rule, you can trademark almost anything so long as it identifies the source of goods and/or services.

When do I own a trademark?

It is important to make a clear distinction.  You do not have to register a trademark to own it or to have rights.  You are the owner of a trademark as soon as you start using it in commerce.  Your rights emerge by using that trademark, not by creating it and keeping it hidden until you are ready to use it.  However, your rights are limited if you do not register your trademark.

Can I use a trademark symbol?

Trademark symbols can be used in order to give notice to the public (consumers and competitors) that you are claiming a trademark as yours.  However, if you have not registered your trademark, you may only use “TM” for goods or “SM” for services.  Once your trademark is registered with The United States Patent and Trademark Office, you can use an ® with your trademark.

Trademark Searches

Before you decide to use a trademark in commerce you should perform a clearance search.  If your trademark is similar to another it may be rejected by an examiner when you apply for a registration due to the likelihood of confusion in the marketplace.  Also, you may be liable for infringement to third parties if you use a mark that creates confusion in the marketplace.

Trademark Law is such a fascinating topic and these are just basic concepts you should consider when building your business and brand.  If you have any questions or require additional information, please contact our office.  Stay tuned for our next blog on Patents!