Does My Business Name Need a Trademark? 15 Questions to Help Uncover the Answer Now
LEGAL DISCLAIMER Although I am an attorney, I am not your attorney, and by reading this, there is no attorney-client relationship. This post is for educational purposes only. As always if you have a specific legal question regarding your business, contact an attorney in your area.
Does My Business Name Need a Trademark?
I am explaining a business name trademark and common questions regarding trademarks in this article. Whether you are a small business or a single owner, this guide will explain the most common questions and where to find answers on whether your business name needs a trademark.
Trivia Question Number One:
What company trademarked their signature scent in 2018? If Hasbro rolled off your tongue, you’d be correct.
What smell?
Play-Doh!
Hasbro formally describes their scent as: “a unique scent formed through the combination of a sweet, slightly musky, vanilla-like fragrance, with slight overtones of cherry, and the natural smell of a salted, wheat-based dough.” See Hasbro’s press release.
Can’t you just smell it now? My house is out of the Play-Doh stage but if they could give tips on how to get dried Play-Doh out of the carpet, I might be willing to buy it again.
Trivia Question Number Two:
Who has trademarked their signature breath?
Yes, you read that correctly.
Answer: Darth Vader!
Well, actually Lucasfilm Entertainment Company Ltd. LLC owns it and described the mark: “...consists of the sound of rhythmic mechanical human breathing created by breathing through a scuba tank regulator.” See the trademark description.
Did Someone Say Bonus Round?
And, I will leave you with my favorite.
Because it’s a heartwarming story between two rivals.
They co-trademarked. Became a partnership. Instead of fighting each other over summer vacations and holidays, they decided to co-parent, if you will.
Any ideas of which word, and what famous entities?
Marvel Characters, Inc. and DC Comics. Working together, separately, since the late 1970s, with the phrase “super heroes.” Geek Out Here.
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And now for the boring bits.
What is a Trademark?
A trademark identifies goods or services that are distinguishable from others and provides legal protection. It can be a name, symbol, word, or (smell!)
2. How do I know if I need a Trademark?
A trademark does not mean you “own” the color, word, smell, or phrase…; it merely means you have the exclusive right to use it with your particular goods or services. Therefore, a business owner with a similar name in a different business may also be allowed to use the phrase. An example would be the name “Dove.” Did you think chocolate or body wash? What about chocolate body wash?
3. Can I trademark my own name?
Typically names are not approved for a trademark, and neither are common, generic words used to describe your business. The more creative and unique, the more you have a chance for it to become registered. See how the Uniform Patent and Trademark Office describes a strong trademark here.
4. What is the difference between a trademark and a registered trademark?
The symbol ™ after a word or phrase signifies a trademark before approval and can be used before applying, or during the process. Once registered, a ® symbol represents a trademark has registration status.
5. How do I search for my business name?
Many businesses fail by not searching adequately. Merely searching for another business name that matches yours does not mean you have a strong mark. You can still apply but may fail for being merely descriptive.
6. Do I need an attorney?
An attorney is not required to file a trademark application. However, you will have a stronger application if you work with an attorney. (I may be biased here.)
7. How do I apply for a trademark?
You can start the process at www.uspto.gov. Another option is to file at the state level. While it will not offer the same protection, it is usually cheaper, less time-consuming, and less restrictive. The best place to start is the Secretary of State’s Office for your state.
8. How much does it cost?
For a federal application, the cost starts at $250, with a per-class charge. State requirements vary. If you are hiring an attorney, those costs will need to be factored in as well.
9. Can I use a company to file a trademark application for me?
Companies that offer trademark application services and charge a minimal fee exist. If the going rate is $1,000 and you are getting charged $100, reconsider. The USPTO does not endorse these companies. See more info here.
10. Am I required to register for a trademark?
There is no requirement to register, and many businesses choose not to.
11. How long does it take?
Typically, it can take between 12 and 18 months at the federal level. Individual states have different response times.
12. What are examples of a common name?
An example of a common name per the USPTO is using the word” bicycle” for “bicycles.” A description of your service in the name will be deemed “merely descriptive.”
13. What happens if I get denied?
You will receive a letter telling you why and what remedies you have.
14. What do I do if someone else already has a similar name?
Determine whether it’s in the same class for which you are applying.
15. How long does a trademark last?
There are many requirements for keeping a trademark active. Make sure you keep up with the requirements and filing fees, or the USPTO will not maintain the trademark. In addition, if you stop selling the specific goods or services for which you received the trademark, it will be canceled.
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