Before you trademark something that you're making or selling--or that you intend to produce sometime in the future--you must register your trademark with the United States Patent & Trademark Office (PTO). This federal agency looks over applications for all proposed trademarks to make sure that yours is one of a kind. After your trademark is registered through the PTO, you can put your trademark on anything that you market and sell, be it goods or services. If one of your competitors tries to use your trademark for goods or services of their own, you can take them to federal court on grounds of infringement. Here are the basics of what you need to know to trademark something that you intend to offer to consumers.
How to Trademark Something
Have a "strong" trademark that identifies your goods or services. Trademarks using fanciful, coined words (e.g., Kodak, Pepsi, Xerox) and arbitrary words (e.g., Tide for laundry detergent) are strong. However, generic names (Camera for a digital camera), descriptive names (Scrumptious Stew Mix) and surnames and common names (Sally Smith) are not registrable. However, a trademark that combines a name and descriptor, such as Sally Smith's Scrumptious Stew Mix, can be registered. Unique slogans, such as "Have It Your Way," can also be registered.
Search the Trademark Electronic Search System (TESS) by accessing the link below to make sure that no one else has registered a trademark that is similar to or the same as yours. If your trademark consists of just a name, a simple or boolean search should suffice--this search will yield a list of trademarks that are registered or pending, along with the goods or services that are associated with the mark. If your own trademark has a design element, searching TESS is more time-consuming, because you must review numerous pages of graphic representations of registered marks by a design code. Consult the Design Search Code Manual on the "Where to Start" link below in Reference 1.
Draft a description of goods and services that your mark will be associated with. This must be included in your electronic application. The PTO will only grant trademark protection for approved goods and services. These are described by class type. To view the classes that you can associate with your mark, click on "Acceptable Identification of Goods and Services Manual" on the "Getting Started" link below in Reference 1.
Access the PTO's Trademark Electronic Application System (TEAS) to fill out your application. Along with your name and certain biographical and contact data, this electronic application will cue you when it's time to upload a digital representation of the mark you wish to register. If your trademark is comprised of both stylized characters (such as a distinct font type) and a design element (a graphic representation), these files must be uploaded separately. After you complete your application, you may pay the application fee using a credit or debit card, automatic withdrawal or through an account with the PTO, if you have one established. The fee to process a trademark application for a single class or goods or services was $325 as of May 1, 2009. However, these fees are subject to change (Reference 1 and 4).
Monitor your trademark application's progress using the PTO's Trademark Applications and Registrations Retrieval (TARR) database (see link below). After you submit your online application, you'll receive a serial number from the PTO via e-mail. You must have this number to search for your application in TARR. If the PTO approves your trademark--and this can take some months--it will send you a Certificate of Registration authorizing you to use your marks with the goods and services proposed.
- The PTO conducts its own search after you submit your application to make sure your trademark isn't in conflict with any others. However, it can also reject a mark due to other reasons. Some of these include if your trademark is "immoral or scandalous" (e.g., used for pornographic purposes), if it deceives or confuses consumers, if it uses the likeness of a living person without their permission, or if it disparages a person or national institution or contains a graphic representation of country's flag or insignia. Before you submit your trademark application to the PTO, read the Trademark Manual of Examining Procedure (TMEP) found at the link below in Reference 6.