Trademark Fundamentals

What a trademark is

A trademark is any word, name, symbol, design or combination that identifies the source of your goods or services and sets them apart from everyone else’s. It protects the reputation you build with customers, not the idea behind the product. Anything that functions as a badge of origin can be a mark, including a color, a sound, a scent or the shape of a package, as long as buyers have learned to read it as yours.

The four things founders usually register

• Word mark: the plain wording, such as BLUE BOTTLE for coffee. This is usually the broadest protection for the money, because it covers the words no matter what font or color you use.
• Design mark or logo: the stylized artwork. Registering only the logo does not protect the words locked inside it as a word mark, which is why many filers file both.
• Slogan or tagline: protectable when it identifies the source rather than just praising the product. HAVE IT YOUR WAY reads as a mark; BEST TASTING PIZZA does not.
• Trade dress: the overall look of packaging or a store. It is protected only when the look is non-functional and buyers recognize it as a brand.

The distinctiveness spectrum

Strength runs in one direction, and where your name lands on it decides whether the application is easy, expensive or impossible. Fanciful marks are invented words for the goods, like KODAK for film. Arbitrary marks take a real word and apply it to unrelated goods, like APPLE for computers. Suggestive marks hint at a quality and make the buyer take one step of thought, like NETFLIX for streaming or GREYHOUND for buses. Descriptive marks state a quality outright, like COLD AND CREAMY for ice cream, and are refused on the Principal Register until they prove acquired distinctiveness through five years of substantially exclusive use. Generic terms are simply the name of the thing, like espresso for espresso, and no amount of use will ever protect them.

What registration actually gives you

• Nationwide constructive notice: once the mark registers, the law treats everyone as knowing about it, so a later user cannot claim they adopted it innocently.
• A federal courtroom: registration gives you a direct route into federal court and, in counterfeiting cases, access to statutory damages.
• A priority date: your claim reaches back to the filing date of the application, which is how an early filer beats a bigger company that started later.
• A public record that shows up in other people’s clearance searches, which is what prevents most conflicts before they ever become disputes.
• The hook for enforcement: oppositions before the TTAB, customs recordation against counterfeit imports, and takedowns on the major marketplaces.

What registration does not give you

A registration is not a monopoly on a word. It is the right to stop confusingly similar use in the classes and channels where you actually trade, which means the same word can legitimately coexist across unrelated industries. Registration does not create a business, does not reserve a company name or a domain, and does not survive if you stop using the mark. It also does not police itself: the USPTO will not sue infringers for you, and it will not stop a competitor from filing something similar unless you oppose it.

Do I have to form an LLC before I can file a trademark application?

No. You can file as an individual sole proprietor and assign the application to your LLC later, but the assignment has to be documented and recorded. Deciding the owner up front is cheaper than fixing it mid-examination.

Someone else uses the same word in a totally different industry. Can I still register?

Often yes. The test is likelihood of confusion, which weighs how related the goods are, how similar the marks are, and how the goods reach buyers. Unrelated goods in unrelated channels usually coexist, but famous marks get protection beyond their own category.

How long does a federal registration last?

Ten years per term, renewable indefinitely, but only if you keep using the mark and file the maintenance paperwork. A Section 8 declaration of continued use is due between years 5 and 6 of the registration date, and a Section 9 renewal is due before year 10.

Is my domain name or my state business registration a trademark?

No. A domain is an address and a state entity name is a registration to do business; neither is a source identifier on goods. Only actual use of the name as a brand, or an application to register it as one, creates trademark rights.

Can I trademark a name that includes my own surname?

A surname is generally treated as not distinctive and needs proof of acquired distinctiveness. Adding a first name or a design element can help, but the cleanest fix is to pick a name that is distinctive on its own.

• Trademark basics | USPTO
• Apply for a trademark | USPTO
• Trademark laws and regulations | USPTO