Are you wondering whether your big idea is entitled to trademark rights? We’re covering what can be trademarked and the importance of obtaining a trademark for these items.
What Can Be Trademarked?
There are two basic requirements for something to be trademarked:
- It must be used in commerce;
- It must be distinctive.
What does this mean from a practical perspective? Symbols, words, phrases, names, images, even colors can be the subject of trademarks.
The United States Patent and Trademark Office (USPTO) is the arbitrator for whether to award a federal trademark registration. There is some helpful information to determine whether something can or cannot be trademark.
Types of Trademarks
There are in fact multiple types of marks that can be registered with the USPTO:
- Trademark: a design, sign, or expression identifying goods from a particular source as compared to those from others;
- Service mark: a design, sign, or expression identifying services from a particular source as compared to those from others.
Because the term “trademark” is used so ubiquitously today, this article will use the term trademark to refer to both trademarks and service marks.
Essentially, distinctive phrases, words, devices, or symbols are all the types of things that can be eligible for trademark protection.
Traditionally, people pursue trademarks for things such as business slogans and business phrases or product brand names. This means trademarks such as Nike and McDonald’s are types of business names that can be subject to trademark.
Similarly, the phrases “just do it” and “I’m lovin’ it” are types of phrases that can be trademarked as well. This is because they are unique enough that they do not specifically associate with a type of good or service on its own.
What Cannot Be Trademarked
On the flip side, there are things that cannot be trademarked that are important to note. For example, you cannot trademark a generic term or phrase such as “ibuprofen,” “hamburger,” or “toothpaste.” You also cannot trademark a government acronym, symbol, or insignia.
Proper names, such as “George Washington,” also cannot be trademarked. Nor can the likeness of a former or current United States President. Finally, and importantly, immoral, scandalous, or deceptive words and phrases cannot be trademarked.
Therefore, in essence, the most important thing is to make sure the trademark you are pursuing is distinctive and unique. The USPTO conducts thorough searches to make sure there are no potentially confusing marks that may compete with your mark.
The Importance of Trademark Rights
Getting a trademark to protect your idea can be very important in the long run to protect your legal rights. It will help protect against potential competitors who may try to bank off of your good idea. It can also protect against the unwitting competitor who uses your trademark without realizing it.
By filing and obtaining a federal trademark registration with the USPTO, you secure superior legal rights to your name, symbol, or phrase.
Common Law Protection
By using your trademark in connection with your business, you will obtain some common law protection for that use. Common law is a body of law created by judges. Specifically related to trademarks, common law has provided those who use trademark eligible content with some legal protection.
However, that legal protection only goes so far. Common law legal protection will only protect you against those who are using your trademark in the same geographic area as you and only to the extent that you can prove that consumers know of your mark and would be confused if used by another company.
However, if you file and obtain federal trademark registration with the USPTO, you will have more complete trademark protection for your business logo, brand name, or phrase.
Trademark rights allow you to exclude others from using your same trademark or something similar. This means you can pursue legal recourse against anyone who might be infringing and obtain any associated damages.
Trademark Compared to Patent and Copyright
Trademarks, patents, and copyrights are all types of intellectual property rights. It can be important to note the difference between the three.
Here are the differences between patents, trademarks, and copyrights:
- Trademark: Protects branding – symbols or words demonstrating a source of goods or services;
- Copyright: Protects content – artistic works like song lyrics, books, and lyrics;
- Patent: Protects inventions and iterations to inventions.
Trademarks, unlike patents and copyrights, do not need to be renewed in any specific time frame. This means that as long as the trademark continues to be used, it is protected under trademark law.
How to Apply for a Trademark
If you do decide you want to pursue trademark rights for your business name, phrase, or another idea, it is important to know what is entailed in applying for and receiving a trademark from the USPTO.
There are different types of registrations that can be submitted to the TEAS. The cost of your trademark application will depend on the type of application you submit within TEAS.
Types of Teas Applications
There are two types of TEAS applications:
- TEAS Regular
- TEAS Plus
The TEAS Regular application (which used to be called TEAS RF) provides the option of using a custom description of your goods or services in the application. This can help distinguish your goods or services from similar ones that could otherwise be a deterrent for approving your application.
The TEAS Plus application requires you to pick the type of goods or service your trademark falls into from a specific, preset list of choices. These choices are listed out in the Trademark ID Manual.
Fees for Teas Applications
The filing fees vary between the two applications:
- TEAS Regular: $350 per class of goods or services
- TEAS Plus: $250 per class of goods or services
Thus, the TEAS Plus application is actually cheaper than the TEAS Regular because you are not able to provide a custom description. You will want to take a look through the Trademark ID Manual and see how well your specific goods or services fall into the preset choices.
If the phrase does easily not fall into one of the categories, the TEAS Standard may be a better option for you.
The cost is per class of goods and services that you identify in the application for your phrase. This means if you choose to mark two different types of goods as the underlying classification for your phrase, then you will need to pay $500 if you file a TEAS Plus application and $700 for a TEAS Regular application.