“Your brand is the single most important investment in your business.” -Steve Forbes
Well, there’s a well-defined (boring) legal definition, but I’ll spare you those details.
A trademark is a brand for what the goods and/or services a business sells. The thing is not all brands are created equally. If a brand is so unique—so when you come across it, you think of the source of that brand automatically. For example, a trademark can be a name (Nike), a logo (swoosh), or a slogan (“Just do it”) . . . among other things.
Sometimes there can be overlapping trademarks from the same source. For example, the term “Google” in itself is a trademark. But so is the Google logo that has the term written in a particular script, colors, and format.
Trademarks play an essential role in protecting consumers and in promoting global economic growth. Trademarks help consumers identify the source of the goods and services that they are purchasing. They help distinguish the source of goods and services from the competition.
Trademarks usually consist of words and logos. A trademark can also be a sound, color, or smell, but this is far less common.
You have two ways to protect, or enforce, your trademark rights. (By trademark rights, I mean your rights to use that trademark and prevent others from using it.)
The first way is under the common law, you get trademark protections by using that trademark in commerce. But these common law protections are limited. They only prevent others from using your trademark in your geographic area. And because it’s automatic and there’s no paperwork, it can be hard to prove that you have these rights.
The second way to protect your trademark rights is by registering them at the federal level. Registering your trademark adds a strong layer of protection around your trademark rights. Let’s say you apply for a federal registration, and it gets accepted. That creates a “presumption” that you own the trademark. A registered trademark also puts others on notice that YOU claim ownership. It makes people less likely to use that trademark.
Technically, you must use your trademark in commerce within more than one state in order for the registration office to accept it. Due to the internet, most businesses use their branding in many states.
The ® symbol indicates that the trademark is a registered trademark. The ™ symbol means it’s a trademark that is not registered. The ℠ symbol means it’s a service mark that is not a registered service mark. In other words, you can start using the little TM and SM after your branding if the mark isn’t registered yet. These symbols show the world that you’re claiming trademark rights to that branding.
Technically, a trademark protects branding associated with goods. A service mark protects branding associated with services. Usually, people just say trademarks to cover both goods and services. Still, if your branding is for a service and you want to use a symbol, you should use the ℠.
Applying for, maintaining, and enforcing a registered trademark is expensive. There are plenty of document preparation companies out there offering a bargain, but what they don’t tell you is that trademark registration applications are 50% more likely to be successful if you have an attorney help you. And the only person who can force someone to stop using your trademark is a judge. Even after you have a registered trademark, it will still cost you to enforce your rights.
For many small businesses that are starting out, registering a trademark is not worth it. Honestly. Why? Well, because they are a lot of work. And you should have already confirmed that your business will be sustainable in the long run. When you’re starting out, you have a lot of priorities. Protecting your branding so that no one else can use it is important. But if your business isn’t making a profit, that won’t matter much.