Trademark Essentials: Understanding How To Protect Your Brand’s Identity

A logo with the words Trademarking Your Business - The Das Law Firm

This article is designed to help any business owner or personal brand developer understand trademarks. From how they work to the value a trademark can represent for you, this article offers the fundamental facts about trademarks, including:

  • What trademarks are and what they protect against.
  • The two key types of trademarks and the information needed to develop them.
  • How to get started on your trademark creation, and how to ensure compliance along the way.

What Is A Trademark? What Protections Does It Provide?

At its core, a trademark protects brand names and logos. It does so by creating a registered legal bond between that brand, its name and/or logo, and the goods or services it is used for.

In rare situations, it can even protect a sound. For example, the NBC jingle is trademarked. Regardless of the type, the brand, image, word, or sound must be distinctive and recognizable and associated with just your brand.

Once you have a federally registered trademark, it gives you nationwide protection, preventing others from using similar marks in the same industry as you. A trademark can even sometimes protect you from its use in overlapping industries (with some limitations). If you were the first to register the trademark, you can stop someone from using the same mark and offering similar services or products as you.

Are There Different Types Of Trademarks? Does The Process Of Creating And Registering A Trademark Change For Each Type?

There are two main types of trademarks most brands and businesses will use or need. Each of these has differences in what is necessary to create and register them.

The first is the word mark. This could be the name of your brand, a slogan, or a company name. The second is a design mark, which is the logo, specific way your mark is drawn, mascot, or other identifiable design.

It is possible (and often desirable) to file both your design mark and word mark, but doing so does require two separate applications. You cannot do both in one application, so that does increase the fees.

Which Trademark(s) Should I Get?

Many clients on a budget, for whom both are not within the realm of possibility, will be better off applying for just the word mark at first. Your word mark is much broader because a word mark protects the words in any font, color, shape, style, or form.

You will have broader protection with a word mark than you would with just the design mark. Then, you can save the design mark for when you start becoming associated with your logo.

Ideally though, if you have the money to invest in both, getting both the word and design trademarks is ideal. You get maximum protection when you have a logo and a word mark because it protects multiple aspects at once. This includes protecting:

  • The color scheme.
  • The shape (for example, if you have your logo within a circle or a square).
  • Any illustration elements within the logo (for example, a frog, flower, or some greenery).
  • The connection between each element, as well as the whole of those elements in connection with your mark.

When it comes down to it, the budget is the key consideration at first. If you do not have the budget to do both, go for the word mark, as it gives broader protections until you are ready to file for the logo.

What Information Or Documentation Do I Need To Start The Trademark Process?

First, it is incredibly important to work with an experienced attorney. If you make a mistake in your complicated application, it could undermine the whole process or leave you vulnerable later.

During the initial consultation with your attorney, it is important to explain your business, your pain points, and any current protections, if you have any. Information such as whether you have formed an entity, if you have reserved a domain, or even your social media handles can be important.

The attorney then completes a proper and full trademark clearance, which many clients mistakenly think is not needed if nothing shows up on Google. However, a trademark clearance search is more thorough than just a Google search. For example, there are lots of phonetic alternatives that are at issue.

You might not realize that when it comes to trademarks, just because the exact spelling of your brand name is not taken by someone does not mean that the trademark is available. A proper search, using a specific (and expensive) software, searches for phonetic alternatives and spellings that might sound the same but are spelled differently.

The search also includes different languages, in case there is another mark in a different language that means the same thing. This could block you or be a hurdle to your registration.

What Are The Initial Steps In The Process Of Creating A Trademark?

That trademark clearance is only the first step. Once a letter of engagement is signed to retain your attorney, you will receive an invoice for the trademark clearance report. If the trademark clearance report comes back with a low risk and you wish to proceed with the trademark application, you will receive the invoice for the application preparation fee.

Then, you will need to decide how many classes you want protection in and pay the U.S. Patent and Trademark Office fees. You will receive a trademark intake form, which typically contains ownership information and mark information and a brief overview of which goods and services you already offer with the mark or intend to offer.

Once your attorney has all that information, they review it and prepare a draft of the application, which will be sent to you to review and finalize the classes of goods and services. Assuming all fees have been paid, the application is then filed.

What Legal Due Diligence Is Required To Ensure Compliance When Creating A Trademark?

The trademark clearance report represents a solid chunk of the due diligence you need to have done before proceeding with the trademark application. This is because a simple (or even advanced) Google search will not reveal many similar phonetic sounding marks or crossover industries. But it is vital that you avoid both.

For example, if you are selling jewelry, you might think a similar trademarked name in apparel will not hurt you, but it will. The trademark office is notorious for overlapping and treating apparel and jewelry as similar classes because jewelry is often sold in the same stores, websites, and other channels of trade as apparel.

Just because your name did not appear in the jewelry industry when you did your Google search does not mean that you will have success trademarking your brand in jewelry. If there are even shoes or apparel with a similar sounding name in that industry, the trademark office has been known to cite them in office actions. It could block your trademark and put an end to your application process.

This is why it is essential to have an experienced trademark attorney on your side during the application process. It might cost a little more, but failing to do so could cost you a whole lot more down the road.

For more information on The Protections Provided By Trademarks And How To Get Them, our attorney can answer your questions in a free consultation call. Get the information and legal answers you need by calling (214) 307 9868 today.

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