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Confused by Trademarks and What They Do? Here's Help.
By Mike Foley
While trademarks certainly haven't been forgotten by inventors, they're a bit like a wallflower at a dance--waiting their turn while often being ignored. Why? Because most inventors spend the majority of their time actually working on a new product. And any mental energy spent on future protection is usually centered on patent protection of products and design, or copyright protection for supporting text materials.
But think about it--you could wind up with a hot -selling product on your hands, something others may want to ultimately copy or license. And a strong trademark may be the best thing for your new business (you know--the one you've created in order to market this great product).
So what is a trademark, anyway? While patents general protect products and designs, a trademark is a unique sign or logo that helps customers quickly identify your product. For example, the cursive lettering on cans of Coca-Cola is unique for that product. You know exactly what it is, what's in that can or bottle, and you know it in an instant.
The trademark helps customers recognize a product, and may ultimately attest to the product's quality and long-standing reputation as a smart purchase. As a result, a strong trademark can become a valuable business asset for any company. So it helps to begin thinking about product names and logos now, in the early stages of product development. From there, you can seek your trademark with the following steps:
1. Search--Many times, a trademark consists of the product name presented in a particular, often artistic, way. You may wish to ask an artistic friend for some help in this. But prior to actually using your new mark, you should seek the services of a patent professional (agent or attorney) to search existing marks. This is a critical step. Although there may not be a mark specifically like yours, you might find others that are very similar. That might ultimately result in confusion among potential customers, and that could, in turn, result in legal action. Before investing in a mark, be sure it's not currently in use and won't present problems later on.2. Use It--In the U.S., the trademark rights in a particular mark won't be recognized until you're actually using the mark in your business, as part of marketing your new product. Once you're comfortable that your mark is free of possible problems, begin using it to market your invention. To use the mark effectively, be sure it is in some way affixed to the product itself.
3. Register--Register the trademark with the U.S. Patent & Trademark Office. The application process is extensive, so the patent professional can also help you in that area. On the other hand, you may wish to handle the application yourself. If so, you can find help through Nolo Press, which offers materials to assist inventors in the trademark (as well as the patent) process. You can find them online at http://www.nolo.com
Your application fee will be around $300. The trademark, if approved, is good for a term of 10 years. After five years, you can file an application to make the mark "incontestable," which strengthens your position in court in any case of infringement. And unlike patents, the mark can be renewed every ten years. As long as you're using the mark properly, it can be renewed indefinitely.
4. Protect Your Mark--Your trademark should identify your unique product, focusing on source and origin of the product. If your trademarked name, however, becomes a generic term, you've lost your interest in that mark. For example, terms like "aspirin" and "shredded wheat" began as trademarked names, but eventually became generic terms on the market. To avoid this, companies consistently monitor the use of their mark to be certain it is being used properly, and therefore not in danger of becoming a generic term. The makers of Kleenex®, for example, constantly monitors the use of that term to be sure it carries the trademark and is capitalized in all written documents.
5. Use Symbols and Terminology--Before the trademark is fully registered with the USPTO, use the symbol ™ next to the product name or logo. Once the mark is fully registered, you may use the standard ® symbol. You should also be sure the word "brand" is used after the product name to further strengthen the mark identification (for example, "Kleenex® brand tissue."
6. Make the Mark Distinctive--To do this, make sure the mark is capitalized, italicized, in bold type, etc. Any of these distinctive touches will help keep the trademark from becoming generic.
7. Use Caution--If the above steps are not used consistently with the trademark or if the mark itself is not used consistently, you may be perceived to have "abandoned" the trademark, and your rights would be revoked. Unlike patent and copyright holders, owners of trademarks must be vigilant about the mark's use. Be sure you're using the trademark consistently, with the above issues in mind.
Remember that your mark offers you very little benefit if you're not using it properly, in accordance with the trademark laws.
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