The proper way to protect a business name in the United States is through a trademark. Trademarks can be thought of as a company's "brand name" and can help differentiate between similar products. The general purpose is to keep the consumer from being confused by similar products. Trademarks are the recognized logo, symbol, scent or sound that signifies a company. Trademark is sometimes confused with copyright. Copyright is a legal protection the U.S. Constitution provides to protect an author's rights regarding a tangible work, such as a novel or a song. Copyright was established to encourage creativity and to combat plagiarism. This protection is not extended to titles, names, words or short phrases (though some of those may be covered by a trademark).
Imagine if the title "The Three Bears" were copyrighted, only one author would be allowed to use that title.
Decide on a Trademark Design
Decide on what you want to register. Do you want the business name to be trademarked in standard character format or as a stylized design format? The standard character format is used to register words, letters, numbers or their combinations, but it gives no specifications to the size, color or design. Use this for a broader protection in any form of presentation. The stylized or design format is for words or letters with a certain appearance you want to protect. You cannot combine the two or sneak in trademark of a word in the design format.
Search the Trademark Electronic Search System to make sure no one else has claimed or applied for the name you wish to trademark. If you find a match or something similar, check the status of that application with the Trademark Applications and Registrations Retrieval database. You will need the serial or registration number to do that search. If something is similar to your mark, consider revising or re-designing to avoid trademark infringement.
Rework your design if it is too similar to another trademark. Consider that having two products with similar packaging will dilute the market for your product. Changing the look of a word or phrase may be enough to differentiate it. Think of the McDonald's golden arches, which are a stylized uppercase letter M. This image is immediately recognizable all over the world. Another company could use an uppercase M with a different effect.
Create a JPEG image file of the mark you wish to submit. You will need this for the application. If necessary, take a picture of the design if it is on a "specimen" or product or label with your business name.
Apply for the Trademark
Fill out the application online with the Trademark Electronic Application System. Click on "Apply for a New Mark," then click on "Trademark/Servicemark Application, Principal Register."
Enter specific information in all fields. Fields containing a red asterisk are required and your application cannot be processed without it.
Sign the application using the following code. A signature can be any combination of letter or numbers preceded and followed by a forward slash. For example: /john doe/ or /123-4567/ .
Click "Validate Form" to make sure you filled in all mandatory information. This is also a chance to double-check your work.
Enter payment information and submit the electronic form.
Establishing Common Law Rights
Be the first to use a mark in commerce. Federal registration is not required to establish a trademark, though it is the easiest way to have evidence of a trademark. If you are the first to use a mark, technically you have rights to the trademark, but proving this can be difficult.
Decide if you want to search for common law trademarks. This step is not required and can be arduous. Searches for first use of a mark could include looking through places such as the Yellow Pages, individual state registers or industrial directories. Because of the time and effort involved in this kind of search, many people hire an outside company to conduct the search or just apply for the official trademark.
Compare any existing common law trademarks with your own design. If the two are similar, try to establish the date of first use. If your design was used first, submit a trademark application.
- Filing cannot be canceled or fees refunded, so make sure everything is correct before submitting.
- Save an electronic copy as well as a hard copy for your records.
- Wait 15 days after submission to follow the status through the Trademark Applications and Registration Retrieval system.
- Attorneys are not required, but an attorney who specializes in trademarks can answer specific questions.