If you have no prior knowledge about trademark registration or anything to do with the trademarking process, you’re in the right place!
When you work hard to start a successful blog and business, you don’t want someone copying your business ideas and identity.
Building a brand and establishing yourself as an expert helps you stand out in the crowd, so trademarking is a critical aspect of protecting your business.
I often get asked the question, “what can I trademark?”
And I’m not surprised that many people don’t understand the difference between legal terms such as trademarks, patents, and copyright.
I created this guide to break down everything you need to know about what, when, and how to protect your intellectual property and business.
Remember that even though trademark law can seem overwhelming, this article will break it down, so it’s not so scary. If you decide you need to trademark and seek legal advice, you’ll have a better understanding of trademarking for a small business.
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What Is A Trademark?
Before I address the question “what can I trademark,” I want to start with defining what a trademark actually is. As the USPTO (the United States Patent and Trademark Office) puts it:
“A trademark is a word, phrase, symbol, and/or design that identifies and distinguishes the source of the goods of one party from those of others.”
Now, this may bring another question to mind if you’re offering a service, and that is: Can a non-tangible thing, such as a service, be trademarked? The answer is yes, but it’s actually called a “service mark.” The USPTO defines it as:
“A service mark is a word, phrase, symbol, and/or design that identifies and distinguishes the source of a service rather than goods.”
In the next few sections, I’ll give some examples of what can and can’t be trademarked and dive deeper into the different types of trademarks.
What Can I Trademark?
There are countless things that you can trademark as a business or individual. You can trademark distinctive things like a name, slogan, symbol, sounds, and logo.
The list starts with a phrase you’ve come up with.
For instance, even Mr. T has a trademark for his catchphrase, “I pity the fool,” dating back to 2011. Or it can be your business name.
You can also trademark a word you’ve created or assigned new meaning to, much like Band-Aid, Popsicle, Frisbee, and many product brands have done.
Symbols can also be trademarked, such as Apple’s iconic apple, with one bite taken out of it. Colors, devices, and countless other creations or branded elements can also be eligible for a trademark.
So, if you’re curious if X, Y, or Z can be trademarked, the answer may very well be yes. Just remember: You can trademark just about anything that distinguishes you or your goods from another party or company with some exceptions. However, you should remember that trademark protections only exist in commercial settings.
What you cannot register as a trademark?
You can’t trademark a book, song, film, music or something you invented for example. For those, look into copyright or patent, which we will discuss briefly below to show you the difference.
Works of art, novels, songs, and even computer coding are examples of common copyrights instead of a trademark.
The USPTO will not grant trademark protection to any mark that is confusingly similar to an existing mark. Before submitting a trademark application, conduct a thorough trademark search to ensure that your mark does not already exist.
You also can’t trademark words that are too descriptive or generic such as “cold ice cream,” or “best ice cream.” These are too generic or descriptive to get trademark protection. Similarly, you cannot trademark a generic word such as “computer” or “notebook” because again, those are widely used and everyone uses them.
What Are The 3 Types of Trademarks?
There are three types of trademarks, and you might choose to pursue any one of them, depending on what you’re looking to protect.
- Trademarks and Service Marks: Phrases, words, and symbols that help define a company’s offerings. Trademarks are for goods, while service marks are for services.
- Collective Marks: Much like trademarks, but used to identify a large group of goods. Collective marks allow the trademark owners to profit from many goods from a single trademark.
- Certification Marks: Certification marks are used to protect a product’s characteristics, like items that claim to be “100% silk” could fall under a certification mark.
Looking at this list, you might get the feeling that you can trademark just about everything, but realize that a trademark doesn’t give you a monopoly over that symbol, word, phrase, etc. It only gives you the right to protect its association between your goods and services.
For instance, McDonald’s has trademarked their slogan — “I’m Lovin’ It” — but if someone were to use it outside of the food service industry, it wouldn’t likely be considered trademark infringement.
The Difference Between a Trademark, Patent, and Copyright
- Trademark: Protects your words or symbols in connection to your goods or services.
- Copyright: Protects artistic works, like songs, lyrics, and books.
- Patent: Protects inventions and alternations to past inventions.
Depending on your business, you may need to apply for some or all of the above to protect everything associated with your company fully.
Why Trademarking is So Important
If someone were to steal your business’ logo and start using it for their own services or otherwise take your product idea and infringe upon your rights, a trademark is there to protect you. However, “unregistered trademarks,” which take effect by default when you create something, can also be effective.
When you use (TM) in your logo, which represents an unregistered trademark, you still afford yourself important protections without the hassle of trademark registration. For instance, if you design a logo and put (TM) in it, then a company recreates something very similar; the burden of proof will be on them.
So, now that you know what you can trademark let’s look at what you can’t.
What You Can’t Trademark
Before we explain what exactly you can trademark, it’s always worth ruling some things out that you absolutely cannot trademark. Both goods and services can be trademarked, or service marked, but you can never try to trademark:
- Proper names or the likeness of a person without their consent: This includes the likeness of any past or current U.S. President, which is also explicitly stated as an exclusion.
- Generic words, phrases, and symbols: Think about the classic heart shape or words like “love.” These can never be trademarked as they’re just too prevalent already.
- Symbols or insignias associated with the U.S. government: For instance, you could never try to trademark a symbol associated with the U.S. Military.
- Disparaging or vulgar words/phrases: You also can’t trademark words or symbols that could be perceived as scandalous, immoral, or deceptive, like a logo that mimics symbols used in healthcare for a non-professional company.
It’s worth noting that you also can’t trademark short sounds or motifs, but only because you need a copyright instead.
What You Can Trademark
Many elements relate to your business or brand that you can trademark, and you must put in the time and effort to do it to protect your company! For instance, your logo, unique brand name, and even your signature color could be trademarked.
Of course, some things are tough to trademark even if it’s possible, such as descriptive names that aren’t distinguishable from other products (such as Legal Bundle for Coaches – this is one of my product names by the way), names that include geographic locations (think “California Pizza Kitchen“), generic names, deceptive names, and surnames that pertain to a product (think “Chamberlain Garage Doors“).
Still, even if you think it may be tough, it’s worth looking into the trademark process so you can enjoy the protections of a trademark.
When Should You Register Your Trademark?
A business in the United States obtains common law rights to a name as soon as it is used in commerce. That is, as soon as you begin selling a product or service, you can claim common law ownership of the trademark without registering it with the United States Patent and Trademark Office (USPTO).
The best time to trademark a product name is when you intend to sell the goods or services for the first time.
In general, for businesses operating in limited regions (like a local small town), an unregistered trademark is likely plenty effective. However, national companies need to register to gain protections across the country and give them a better platform for keeping their symbols safe from infringement.
If your company currently operates in a region that goes beyond one small town, it’s worth looking into the trademark process to make sure you’re protected.
How to Apply for a Trademark
The process of registering a trademark can take 9-12 months, so you should start as soon as possible.
Fortunately, the process is fairly simple. It starts with visiting the website of the USPTO and entering your application online. You’ll need to select a class (which you can easily do by entering your business type into their search) and then filling in all of your business information.
How Many Trademark Applications Do I Need to Fill Out?
You will need to complete a separate application for your name, logo, and symbol(s). If you’re only able to file once, make a standard character claim to assert that your trademark covers your company’s name regardless of its font. However, it won’t protect your logo.
How Long Does a Trademark Last?
A trademark will last for 10 years once the USPTO has accepted it. You can refile an unlimited number of times.
How Much Does It Cost to Trademark Something?
The trademarking process isn’t cheap! The USPTO has an electronic application fee ranging from $275 to $325 (depending on class), but there are also fees associated with trademark maintenance.
How to Maintain Your Trademark
Many people don’t realize that they can actually lose their trademark if they don’t maintain it properly. In their article called “Keeping Your Registration Alive,” the USPTO says:
“…the registration owner must file required maintenance documents at regular intervals. Failure to file the required maintenance documents during the specified time periods will result in the cancellation of the U.S. trademark registration or invalidation of the U.S. extension of protection.”
They also have a handy post-registration timeline that’s worth reviewing. Once you do, you might be surprised by just how involved the trademark registration process is!
Should You Hire a Trademark Attorney?
After you take a look at all the paperwork you’ll need to continue to file to maintain your trademark, you might begin to think it’s all too much of a hassle — but it’s well worth the protection a trademark will afford your company. An attorney who specializes in trademark registration can answer your question, “what can I trademark easily?”
The key is to work with a professional who knows what they’re doing. While hiring a trademark attorney may sound like an expensive pursuit, you should still consider hiring a trademark lawyer to handle the paperwork for you instead of trying to do everything on your own and making mistakes.
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Frequently Asked Questions About Trademarks
To wrap things up, here are answers to some common questions.
Can a phrase be trademarked?
You can trademark a phrase if the words take on a distinctive meaning, but you’ll have to prove that.
Does a trademark completely prevent others from using what I have protected?
No one else will be able to use the words, phrases, or symbols you have trademarked in conjunction with a similar good or service. However, companies in different industries may still use your trademarked goods.
What’s the difference between ® and ™?
You can use the ™ logo for claimed trademarks, but they are not registered with the USPTO yet. You can start using that symbol when you file the application. The ® logo, on the other hand, represents a trademark that has been registered.
When can I sue for infringement?
In general, it’s not an infringement unless a company is a competing provider in your industry. In other words, you’ll have to prove that their use somehow confuses your customers or directly competes with your business.
Final Thoughts – The Ultimate Guide to Trademark Registration: When, Why & How
Whenever I hear someone ask what can I trademark, I see that they often confuse a trademark, patent, or copyright and use these terms interchangeably. But now you know the difference, so you can develop a plan on what you need to trademark in your business. It may seem expensive, but can you really afford not to protect this aspect of your business?
I promise you that it may be too late once someone starts using a phrase or symbol that people associate with your business. And I don’t want you to make the same mistake many entrepreneurs do when they don’t trademark something that helps their customers distinguish them from their competitors.
But you’re smarter than that! Now block out some time and evaluate the things you can trademark, copyright, or patent and develop a plan to protect those critical aspects of your brand.
Protecting yourself and your business is critical to your success.
Still not sure what you need? Then check out this free legal lesson on how to blog legally below.
LET ME KNOW IN THE COMMENTS BELOW IF THIS Post HELPED YOU? IS THERE ANYTHING ELSE YOU NEED THAT WOULD HELP YOU WITH REGISTERING A TRADEMARK?
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