If you’ve ever had to name one of your children you know how hard it is to come up with a good name. Imagine if you had to choose a name for your child that didn’t cause any sort of confusion with someone else’s name. That would make it even harder. That’s what you’re up against when you choose a trademark.
The first thing you normally do when you start your business is choose your business name. Your formal business name chosen when you formed your LLC, corporation, or sole proprietorship isn’t automatically your trademark. It only becomes a trademark if you use it to market your goods or services. For example, Franchise World Headquarters, LLC is the corporate name for Subway. Their trademark is Subway because that’s what they slap on their storefronts, their packaging, their advertising, and everything else. In some cases the corporate name is also a trademark. For example, Apple, Inc. is a trade name and is also a trademark along with their other trademarks such as iPod, iPad, iPhone, etc.
A trademark is any word, design, slogan, sound, or symbol that serves to identify your product or services.
The Steps to Establishing Federal Trademark Rights are as follows:
- Choose a good trademark and evaluate its strength.
- Conduct a trademark search.
- Evaluate the results of the search.
- Use the trademark in interstate commerce.
- Register the trademark with the United States Patent and Trademark Office (USPTO).
- Protect and renew the trademark.
The person or company who first uses the trademark in commerce automatically has rights to the trademark within the geographic scope of that use. They don’t have to do anything else. If they use the trademark in one city, they have rights to the mark in that city. If they use it in two states, they only have rights to it in those two states. If they use it throughout the United States, they have rights to the trademark throughout the United States. These are called common law rights.
As soon as a person or company uses a trademark in more than one state, they may register the name with the USPTO. When the USPTO approves the application, the person or company has nationwide rights to the name regardless of the geographic scope of the use. Each state also has its own trademark registration system to gain rights to the mark in that state. Most people cut to the chase and just get the federal registration. Once you’ve established rights in the trademark, you need to take steps to protect it.