Trademarks

If you’ve ever had to name one of your chil­dren you know how hard it is to come up with a good name. Imag­ine if you had to choose a name for your child that didn’t cause any sort of con­fu­sion with some­one else’s name. That would make it even harder. That’s what you’re up against when you choose a trademark.

The first thing you nor­mally do when you start your busi­ness is choose your busi­ness name. 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. Their trade­mark is Sub­way because that’s what they slap on their store­fronts, their pack­ag­ing, their adver­tis­ing, and every­thing else. In some cases the cor­po­rate name is also a trade­mark. For exam­ple, Apple, Inc. is a trade name and is also a trade­mark along with their other trade­marks such as iPod, iPad, iPhone, etc.

A trade­mark is any word, design, slo­gan, sound, or sym­bol that serves to iden­tify your prod­uct or services.

The Steps to Estab­lish­ing Fed­eral Trade­mark Rights are as follows:

• Choose a good trade­mark and eval­u­ate its strength.
• Con­duct a trade­mark search.
• Eval­u­ate the results of the search.
• Use the trade­mark in inter­state commerce.
• Reg­is­ter the trade­mark with the United States Patent and Trade­mark Office (USPTO).
• Pro­tect and renew the trademark.

The per­son or com­pany who first uses the trade­mark in com­merce auto­mat­i­cally has rights to the trade­mark within the geo­graphic scope of that use. They don’t have to do any­thing else. If they use the trade­mark in one city, they have rights to the mark in that city. If they use it in two states, they only have rights to it in those two states. If they use it through­out the United States, they have rights to the trade­mark through­out the United States. These are called com­mon law rights.

As soon as a per­son or com­pany uses a trade­mark in more than one state, they may reg­is­ter the name with the USPTO. When the USPTO approves the appli­ca­tion, the per­son or com­pany has nation­wide rights to the name regard­less of the geo­graphic scope of the use. Each state also has its own trade­mark reg­is­tra­tion sys­tem to gain rights to the mark in that state. Most peo­ple cut to the chase and just get the fed­eral reg­is­tra­tion. Once you’ve estab­lished rights in the trade­mark, you need to take steps to pro­tect it.