You obtain a trademark by using a logo, word, slogan or design that is associated with a product or service provided by your business. The key to establishing a trademark is using it actually and continually in commerce. The strength of your trademark rights depends on the uniqueness of your trademark, how long it has been in use and the size of the geographical area where the trademark is used. Although not legally required, registering your trademark with the United States Patent and Trademark Office (USPTO) provides the maximum legal rights and protection for your trademark.
Research the market in which you intend to use your trademark. Search the geographical area where the business is likely to find its customers and determine whether there is another business with the same name or logo that you intend to trademark. If no other business is using the name or logo, you can apply for trademark rights in the name and logo in that area simply by using it. If another business uses the same name or logo, you risk violating the other business's trademark rights.
Use your trademark in all facets of your business, such as on signs, packaging, business cards and, as is practical, on any other item associated with your business. This is the primary way you protect your trademark and enforce your rights against someone attempting to use your trademark or a similarly confusing trademark to compete with your business.
Submit an application to the USPTO to register your trademark, if you want the ultimate legal protection. This can be done via mail or online through the USPTO website. A federal trademark application requires the name of the owner of the trademark (either you or your company), the owner's address, a drawing of the mark, identification of your goods and a specimen indicating how the mark is used. Although you must actually be using the trademark in commerce before it can be registered, the USPTO permits the filing of an application based on an "intent to use" the trademark so you can start the registration process before using the trademark.
Submit an application to register your trademark in the state where your business is located and in any other state where you do business using the trademark. Each state has its own agency for trademark registration, such as the Secretary of State's office in California. The majority of states have enacted the Model State Trademark Bill, which is similar to the Lanham Act that governs federal trademark law. The trademark registration requirements in states using the Model State Trademark Bill are nearly the same as the USPTO requirements.
Tips & Warnings
To search trademarks beyond your local area check the records of the USPTO and any relevant state records for registered trademarks to ensure that your trademark will not infringe on any existing registered trademark. Federally registered trademarks and pending applications can be searched online using the USPTO website.
In addition to the right to use the symbol "®" with your name and logo, registering your trademark with the USPTO gives you several additional protections over other businesses infringing on your trademark such as the right to sue in federal court and a legal presumption in any lawsuit that you are the exclusive owner of the trademark.
References & Resources
- U.S. Patent & Trademark Office: Basic Facts About Trademarks
- Litman Law: How to Obtain a US Trademark
- U.S. Patent & Trademark Office: Trademark Electronic Search System (TESS)
- Nouveau Law LLC: Trademark FAQ
- Law Office of Jerry R. Potts: State Trademark Laws and Application Forms
- Boston University, School of Law: State Trademark Statutes
- Dynamic Graphics/Creatas/Getty Images