Trademarks for Entrepreneurs and Innovators

What Are Trademarks?

Trademarks and service marks are signs (which can include such things as names, words, logos, animations, sounds, jingles, colors, smells, shapes, etc. and combinations thereof) used to identify the source of goods and services, respectively. Oftentimes (and here as well) the term "trademarks" or just "marks" is used for simplicity to refer to both trademarks and service marks. For example, there is a U.S. Trademark Office, but not a separate Service Mark Office. The law treats both equally, and the same signs can be used on both trademarks and service marks. For example, a log home company could have a sign that acts both as a trademark for goods (its log home kits) and as a service mark for services (its service of building log homes).

Trademarks Are Adjectives

In general, trademarks in written or spoken language are adjectives and are used as such. Words that are used as verbs and nouns are generally not trademarks, and use as such generally risks the validity of the mark. (The exception is when you use a phrase of several words as a mark.) To help you think of proper use, think in terms of the "trademark (brand) product/service." In other words, the trademark should not be the name of the product or service itself.

Registered Trademarks

One way businesses can protect their marks is by seeking registration with a government trademark office. While registration is not always necessary for marks to become protected and enforceable, registration provides certain advantages, including a presumption of ownership and the right to use the mark along with an ability to sue for infringement in federal court (with a federal registration), as opposed to state court. Registrations are available at the state, federal, and internationally (country-by-country) level. A recent study shows that the number of trademarks registered by a company correlates to that company's near-term profitability and stock returns. Learn more about registration.

Common Law Trademarks

Many marks are not protected by formal registration with a government trademark office. They can still function as trademarks, however, to the extent they serve to uniquely identify the source of goods or services. In fact, common law trademark rights can sometimes trump later registration-type rights. That said, common law marks are usually only enforceable within the geographic area in which they are actually used.

Do I Have Trademarks?

Every business has or will have trademarks if/when that business does any business. Additionally, each business may have trademarks in the signs that it intends to use in the future if it takes steps to protect its priority to those signs by filing trademark applications, then eventually uses the applied-for signs. The questions businesses should be considering include:

Additional Resources:

Here are links to additional trademark resources that may be useful:

WIPO Publication - Making a Mark: An Introduction to Trademarks - Information for small to medium-sized businesses
U.S. Trademark Search Page - a site allowing you to search for existing U.S. trademark registrations and applications
U.S. Trademark Identification Manual - a searchable site that describes acceptable descriptions of goods and services for a trademark application
TMview - a searchable site maintained by the European Union allowing you to search for existing trademark registrations and applications in many countries around the world
US Trademark Filing Page - the page where trademark applications are filed as well as where responses and other documents are filed with the Trademark Office
Utah Trademark Manager - a site to search for and file for Utah trademark registrations
U.S.P.T.O. Trademark Basics - a government site with lots of trademark information
Common Application Problems - A list of fixable and non-fixable mistakes that happen in trademark applications
INTA's Guide to Proper Trademark Use - a handy guide to help you use trademarks properly, preserving their value