We're willing to bet you’re wearing several trademarks at this very moment. The tag on your shirt and your watch probably have trademarks. Your shoes almost certainly have trademarks. So do your glasses.
If you’re a certain type of Gen-Z adrenaline junkie, you may even have a trademark tattooed on you (looking at you, Monster Energy™ guy…)
But if you’re a business founder - a starter [link to starter post] - your interest in trademarks is (*Dad Joke Alert*) more than skin deep. So here are the answers to your top four trademark questions:
1. What’s a trademark?
According to the USPTO (more on them later), a trademark is “a word, phrase, symbol, or design, or a combination thereof, that identifies and distinguishes the source of the goods of one party from those of others.”
In less bureaucratic-speak, a trademark is words, graphics, a logo or catchphrase that tells people that your company or product is different from anyone else’s company or product. Think of Starbucks’ mermaid, Target’s red bullseye, or Nike’s slogan “Just Do It.” All trademarks.
Trademarks can be, but do not have to be, registered. A registered trademark is on file with the USPTO, which gives the trademark owner a bunch of nice-to-have protections, including the ability to keep other people from using the same or similar trademark anywhere in the U.S. A registered trademark can be accompanied by the ® symbol.
An unregistered trademark, also called a “common law” trademark, is also enforceable against someone else who tries to use it, but it may be more difficult or only enforceable in limited circumstances.
Good to know: you can use the ™ symbol with either a registered or unregistered trademark.
2. Does my new business need a trademark?
You’re darn right it does.
If your business will sell a product or services, you’re going to want a trademark for those products or services. A trademark will keep other companies from imitating your product or service and detracting from your brand’s value. A trademark can also improve your company’s reputation and help build goodwill through marketing.
This doesn’t mean that you need to spend hundreds or thousands of dollars to register your trademark. You can get a common law trademark for little or no money. Which brings us to our next question:
3. How do I get a trademark?
That depends on whether you want a registered or unregistered trademark.
Getting a registered trademark
To get a registered trademark, you need to file an application with the U.S. Patent and Trademark Office (the “USPTO”). The application includes a description and/or sample of the mark and evidence of its use in commerce.
You must also select which class(es) of goods or services the trademark should cover. There are 45 classes, and - this is important - your registered trademark only keeps others from using the same mark for goods or services in the registered class(es). The classes are fairly broad and include things like chemicals (001), musical instruments (015), and food services (043).
Getting an unregistered trademark
To get an unregistered (common law) trademark, all you have to do is use it. Seriously, that’s it. Create a public website, hang out a sign in front of your store or on your truck, or distribute marketing materials or advertisements with the trademark on it - they all count as using the mark in commerce.
However, an unregistered mark gets you pretty limited protection. You can only prevent others from using your mark in your business’s geographic area, and you often can’t sue for money
damages. The best you can hope for is a court telling the other business to stop using the infringing mark.
Benefits of a registered trademark
As if you needed another example of “you get what you pay for”, registering a trademark has a bunch of advantages:
- You are legally presumed to be the owner of the mark nationwide.
- The world is on notice that you own the mark, because the mark is listed and searchable on the USPTO’s website, and because you can use the ® symbol with your mark.
- In a dispute, it is easier to prove the other business is infringing your mark.
- The process of registering helps ensure you’re not accidentally infringing someone else’s mark.
4. How much does it cost to get a trademark?
We hate to say it, but it depends.
If you decide to apply for a registered trademark, the USPTO’s application fee is between $250 and $400 per class. So only apply for the class(es) you actually intend to use the mark in. If you use a lawyer to apply for your registration, expect to pay an additional $1,000 to $2,000.
You also may want to pay for what is called a clearance search, which is when a lawyer or professional trademark search company searches various databases and the internet for trademarks that might conflict with the one you want. A clearance search can range from $1500 for a basic, U.S. only search, to $40,000 or more (yikes!) for a comprehensive international search.
5. Surprise Bonus: Stuff you didn’t know you needed to know about trademarks
Trademarks are different from patents and copyrights. Patents protect inventions like machines (think: mousetraps and rocket engines) or processes (think: Amazon's One-Click ordering system). Copyrights protect original works like songs, novels, or paintings.
Finally, a word about service marks. Technically, trademarks are for goods (stuff you can hold), and service marks are for services (think landscaping companies or accounting firms). But in reality everyone just uses “trademark” or even just “mark” to mean both trademarks and service marks.