Basic Facts About Trademarks: What Every Small Business Should Know Now, Not Later
This video is a must for anyone interested in starting a business to sell a product or offer a service. It highlights the important role of trademarks in that process, including a discussion of how trademarks, patents, copyrights, domain names, and business name registrations all differ. It gives guidelines on how to select the right mark---one that is both federally registrable and legally protectable. It also explains the benefits of federal registration and suggests resources if you need help with your application. By the end of the video, you'll understand why having a trademark component of your business plan is critical to your success.
NOTE: The run time for this video is approximately 42 minutes, so please allow adequate viewing time.
Enhanced Accessibility Version of the "Basic Facts About Trademarks" Video [run time: 41:52]
What is a trademark or service mark and how do they differ from patents and copyrights?
A trademark is a brand name. A trademark or service mark includes any word, name, symbol, device, or any combination, used or intended to be used to identify and distinguish the goods/services of one seller or provider from those of others, and to indicate the source of the goods/services. Although federal registration of a mark is not mandatory, it has several advantages, including notice to the public of the registrant's claim of ownership of the mark, legal presumption of ownership nationwide, and exclusive right to use the mark on or in connection with the goods/services listed in the registration.
It is important to understand whether you should file for a trademark/service mark, a patent, and/or a copyright. While all are types of intellectual property, each protects something very specific. Please study how trademarks, patents, and copyrights differ to ensure you are making the proper filing decision at the outset of the filing process.
Hire a Trademark Attorney or Get Other Help?
Although not required, most applicants use private trademark attorneys for legal advice regarding use of their trademark, filing an application, and the likelihood of success in the registration process, since not all applications proceed to registration. A private trademark attorney (not associated with the USPTO) may help you avoid many potential pitfalls. To locate an attorney, consult your local telephone listings or contact the attorney referral service of a state bar or local bar association (see American Bar Association’s Consumers’ Guide to Legal Help). The USPTO cannot provide you with legal advice or help you select an attorney.
Attorneys generally charge a fee for their services, but some attorneys and bar associations may offer free or greatly reduced services to financially under-resourced individuals and small businesses. The USPTO has interacted with intellectual property ("IP") law associations to encourage the establishment of such pro bono programs, including the American Bar Association. The International Trademark Association also has a committee dedicated to raising awareness about IP pro bono issues globally. The USPTO's reference of these resources is for informational purposes only.
If an attorney is not being used, other possible resources do exist: for general trademark information, please e-mail TrademarkAssistanceCenter@uspto.gov, or telephone 1-800-786-9199; if you need help in resolving technical glitches when using the Trademark Electronic Application System (TEAS), please e-mail email@example.com. Please include your telephone number in your e-mail, so we can talk to you directly, if necessary.
Other Initial Considerations
Before starting the application process, it is important to have clearly in mind (1) the mark you want to register; (2) the goods and/or services in connection with which you wish to register the mark; and (3) whether you will be filing the application based on actual existing use of the mark or a bona fide intention to use the mark in the future. This will make your search of the USTPO database more useful and may simplify the application process. More details on mark types, goods and services, filing basis, and searching are provided in the next four sections.
Identifying Your Mark: Select One of Three Possible Formats
An important consideration is the depiction of your mark. Every application must include a clear representation of the mark you want to register. We use this representation to file the mark in the USPTO search records and to print the mark in the Official Gazette (OG) and on the registration certificate. The OG, a weekly online publication, gives notice to the public that the USPTO plans to issue a registration.
For further information about this topic, please watch a news broadcast-style video on "Drawing Issues" (video #5 in the Trademark Information Network (TMIN) series).
Identifying Your Goods and/or Services
Once you have chosen your mark, you must also be able to identify the goods and/or services to which the mark will apply, clearly and precisely. The identification of goods and/or services must be specific enough to identify the nature of the goods and/or services. The level of specificity depends on the type of goods and/or services. For examples of acceptable identifications, please consult the Acceptable Identification of Goods and Services Manual (ID Manual). NOTE: Under U.S. Trademark law, class headings from the International Schedule of Classes of Goods and Services by themselves are not acceptable for registration purposes. The specific items of goods and/ or services must be listed.
For further information about this topic, please watch a news broadcast-style video on "Goods and Services" (video #6 in the Trademark Information Network (TMIN) series).
Searching Marks in USPTO Database
You should search the USPTO database before filing your application, to determine whether anyone already claims trademark rights in a particular mark through a federal registration. Failure to conduct a proper search may result in your not making a proper assessment as to whether an application should even be filed.
For further information about this topic, please watch a news broadcast-style video on "Searching" (video #3 in the Trademark Information Network (TMIN) series).
Identifying the Proper "Basis" for Filing a Trademark Application
A trademark application must specify the proper "basis" for filing, most likely either a current use of the mark in commerce or on an intent to use the mark in commerce in the future. Understanding the distinction between these filing bases, and the implications of selecting one, are important considerations before starting the application process.
For further information about this topic, please watch a news broadcast-style video on "Filing Basis Information" (video #7 in the Trademark Information Network (TMIN) series).
Filing a Trademark Application
Paying Required Fees
What the proper filing fee is for your application will be based specifically on three (3) distinct factors. It is important to understand these variables, as it may impact how you may wish to proceed. Also, be aware that the filing fee is a processing fee that the USPTO will not refund, even if you ultimately do not receive a registration for your mark. View trademark fee information.
Monitoring Status of Your Application
You should monitor the progress of your application through the Trademark Status and Document Retrieval (TSDR) system. It is important to check the status of your application every 3-4 months after the initial filing of the application, because otherwise you may miss a filing deadline. Please review the additional information on checking status to ensure you understand this important step in the overall registration process.
Protecting Your Rights
You are responsible for enforcing your rights if you receive a registration, because the USPTO does not "police" the use of marks. While the USPTO attempts to ensure that no other party receives a federal registration for an identical or similar mark for or as applied to related goods/services, the owner of a registration is responsible for bringing any legal action to stop a party from using an infringing mark.
Trademark Manual of Examining Procedure (TMEP)
For additional information on various topics, you may also wish to consult another USPTO electronic resource, the Trademark Manual of Examining Procedure (TMEP). The TMEP provides trademark examining attorneys in the USPTO, trademark applicants, and attorneys and representatives for trademark applicants with a reference work on the current law, practices, and procedures relative to the federal trademark application and registration process. The TMEP contains information and guidelines designed to assist USPTO examining attorneys in reviewing trademark application. This information also may be useful to an applicant to better understand the trademark application process. The TMEP includes an alphabetical index by subject matter to help users locate pertinent information.
Other Government Resources for Trademark Owners
- Record Trademarks with Customs and Border Protection (CBP)
- Information for Customers with Special Interests and Requirements
- State Trademark Links
- Related non-USPTO Links
- Fastener Quality Act (FQA)
- Geographical Indications
- Native American Tribal Insignia