Many people think of trademarks as tricky business, as if the trademark world is a veritable field of landmines to be cautiously navigated through. And there’s a bit of truth to that, trademarks are tricky business. They can boil down to things like the exact color used in a business logo, and trademark suits can get very nasty.
But that’s no reason to not register a trademark, because that just makes the situation even worse for your business. With that said, let’s explore what exactly a trademark does for your business.
What exactly defines a trademark?
There is a lot of confusion around trademarks, and whether or not they need to be legally registered. It is entirely possible to have an unregistered trademark, and enjoy some protections, but this is not something you can rely on long-term.
A registered trademark, as defined by the International Trademark Association (INTA), is “any word, name, symbol or device that identifies and distinguishes the source of the goods of one party from those of others”. Essentially, a trademark is something about your business that identifies it as unique from others, even if you sell the same category of products.
Think of different brands of bottled water. They’re all just water in a bottle, but what distinguishes them apart are brand names and logos, package designs, slogans. Anything that distinguishes one bottled water company from another would fall into the area of trademarks.
So essentially, trademarks are like a brand name, but can also apply to anything that holds up and identifies the brand name. In a way, the film Coming to America humorously summed up the grey areas between trademarks, although there have been many revisions and amendments to trademark laws since 1988:
“Look… me and the McDonald’s people got this little misunderstanding. See, they’re McDonald’s… I’m McDowell’s. They got the Golden Arches, mine is the Golden Arcs. They got the Big Mac, I got the Big Mick. We both got two all-beef patties, special sauce, lettuce, cheese, pickles and onions, but their buns have sesame seeds. My buns have no seeds.”
Registering a trademark – is it necessary?
As we mentioned earlier, it is possible to have an unregistered trademark, but your legal protections are significantly diminished. Trademarks that are not registered with the United States Patent and Trademark Office (USPTO) can be protected at the local state level, either with common law or statutes that refer to unfair competition. Many U.S. states have adopted either the Uniform Deceptive Trade Practices Act or the Model Trademark Bill.
Registering a trademark is pretty straight-forward, but there are many strict guidelines to adhere to. For comprehensive coverage and addressing all angles of trademark registration, it’s best to hire an attorney or legal service, like Nominus, that will walk you through the process and make sure everything is perfectly square. The upfront cost of this is far more attractive than what you would spend in defending an unregistered trademark in courts.
But while it isn’t entirely necessary to register a trademark in order to establish one, it will cost you in other ways. For example, if your trademark is challenged in court, it is entirely on you to prove evidence of ownership, and this can be a very lengthy and costly process.
Specific reasons to register a trademark
An unregistered trademark will only protect you at the local level, but not on a national level. This means that someone across state lines could easily copy your brand, and you’d have little to no recourse. This is important for businesses that plan to expand, and also saves you a lot of headaches in defending your trademark if someone who copied your unregistered trademark suddenly decides to copyright it.
You may in some situations be able to bring an infringement case to federal courts, but it is extremely difficult to meet the exacting requirements, and so often unregistered trademark cases often find themselves stuck in state courts. With a registered trademark you can skip this headache and go straight to federal courts. Even the threat of this is a pretty strong deterrent against people infringing on your trademark.