Trademark Law and Brand Protection
Being negligent with brand protection can prove costly. There are now numerous law firms that are specialized in finding and penalizing those who are guilty of trademark infringement. So before the first unpleasant letter finds its way to you, you should read up on the rules and rights. It’s equally as important for companies to protect their own brand names and therefore prevent any imitators and other troublesome situations. We explain the most import terms and discuss when and why trademark registration is especially important for young online companies.
What is a brand?
A brand is a distinguishable symbol, logo, name, word, or sentence which companies use to set their products or services apart from the rest of the market. It’s most common to see brands comprising names and a related symbol, but 3D brands, sound trademarks, and tracer marks are also used.
A trademark 'typically protects brand names and logos used on good and services'. More can be read here about U.S. Trademark Law. The brand can be thought of as a kind of advertisement or business card for the company, which it uses to present its products or services on the market. Trademarking a brand fulfils many functions:
- It helps to distinguish products and services from others on the market
- It makes their origins clear
- It invokes trust
- It reflects an image
- It stands for individuality
- It’s often associated with quality and guarantees
For companies, the brand is one of the most important means for them to position themselves on the market and differentiate their products from the competition.
Applying for brand protection
The United States Patent and Trademark Office (USPTO) is an agency in the U.S. Department of Commerce that enables companies to register trademarks for products. Not every brand is able to be registered with USPTO so you must first consider whether your brand is, in fact, able to be registered and whether it might actually be difficult to protect depending on its strength.
You then need to decide how your brand should be represented in your application. Do you want a standard character format, stylized/design format, or a sound trademark? The former is an attractive choice for many businesses since registering this kind of trademark means that it’s protected in any font style, size, and color. You’re not required to register your trademark with the federal government, but by not doing so, you miss out on the rights and protections provided by a federal trademark registration.
It’s crucial that you decide the exact products or services that you want the trademark to apply to, then check the USPTO database to make sure no other company has already claimed trademark rights on a similar design through a federal registration.
Before you can file for brand protection, you must determine the basis for filing, whether it falls in the 'use in commerce' or 'intent to use' category. For the former, you must also prove that the brand has been used commercially. You should select the latter if it hasn’t yet been used, but you intend to use it in the future. It might be worthwhile hiring a trademark attorney if you aren’t confident taking these steps yourself.
Completing and submitting the application
The application form can be filled out online using the Trademark Electronic Application System (TEAS), which you can then send directly to USPTO. There are many different forms to choose from such as TEAS Plus, TEAS Reduced Fee, or TEAS Regular. The former has the lowest filing fee, but also the strictest requirements: so if you cannot fulfil these, you must choose one of the other two options. Be aware that the filing fee is a processing fee, so your application could still get rejected and your money won’t be refunded.
You can monitor your application’s process through the Trademark Status and Document Retrieval (TSDR) system. It’s crucial that you check in every 3-4 months otherwise you might miss an important filing deadline.
Application is reviewed by examining attorney
The USPTO must first check whether the minimum filing requirements have been met, before assigning an application serial number and forwarding your application onto an examining attorney. This process could take several months. The examining attorney checks to see if everything is up to scratch regarding applicable rules and fees. A search is performed to see if there are any conflicting trademarks and then the attorney checks the written application and image of the brand.
If, for some reason, the trademark cannot be registered, the examining attorney sends out a letter explaining why. This could just be down to errors made while filling out the form. If you receive this letter, you have six months (from its dispatch date) to reply or else the application will be canceled.
If everything goes smoothly and your application is approved, it’ll be released in USPTO’s weekly publication, the 'Official Gazette'. The USPTO will also send you information confirming the date of publication. Any party who believes that the trademark shouldn’t be registered has thirty days to get in touch. If no-one objects, your application will enter the next stage of the registration process, which can take three to four months. Don’t forget to keep monitoring the status.
If everything is approved, the USPTO will register the trademark and the owner will be sent a certificate of registration. This isn’t the end of it though; the owner must continue filing certain maintenance documents so that the registration stays in place.
The whole registration process can be found in more detail here.
A brand name is the basis for creating company recognition. If customers are already familiar with individual products or whole product ranges, they can then easily recognize new products in a company’s range thanks to the brand name. Brands convey an image as well as suggesting quality, almost like a way of making a promise to customers who are already in contact with the company.
But this is all useless if you haven’t officially registered your trademark with the USPTO. By trademarking your brand, you’ll make sure you don’t infringe on any third party rights and also protect your products or services against others misusing your name. Young online companies should also start the trademark application as quickly as possible. Even if the business fails, the registration won’t be in vain since the rights to it can be sold on to another company at a later date.