What can be trademarked? This is a common question among businesses and individuals. Not securing your intellectual assets can expose your company or work to potential financial losses. When you discover what can and cannot be trademarked, you can avoid potential legal disputes and the risk of competitors capitalizing on your creative innovations.
What Can Be Trademarked?
Intellectual property encompasses a wide range of trademark words, letters, abbreviations, or symbols representing your brand’s distinctive elements. From phrases and logos to sounds and product shapes, you can trademark anything that distinctively represents your work and helps consumers recognize your unique offerings. Other applicable trademark examples include packaging designs, characters, services, and slogans.
Are you wondering whether your big idea is entitled to trademark rights? We’re covering what can be trademarked in the U.S. and the importance of obtaining trademark protection for these items.
What Is a Trademark?
A trademark is a distinctive sign representing a brand’s intellectual property in the marketplace, such as business names, logos, or phrases. Trademark protection safeguards a brand’s identity and the significant investment behind it.
Every successful brand identity relies on at least one trademark to distinguish its product or service. For instance, names and logos serve as the fundamental elements of brand representation. to award a federal trademark registration. There is some helpful information to determine whether something can or cannot be trademark.
Types of Trademarks
A trademark is a design, sign, or expression identifying goods from a particular source as compared to those from others. Service marks, arbitrary marks, suggestive marks, and fanciful marks are types of marks that can be registered with the USPTO.
- Service marks: A design, sign, or expression identifying services from a particular source as compared to those from others. For example, Nike’s “Just Do It”.
- Fanciful marks: Invented words with no pre-existing meaning. For example, the brand KODAK.
- Arbitrary marks: Highly distinctive common words unrelated to the product or service with strong legal protection. For example, Amazon is used for online retail.
- Suggestive marks: Hints at product qualities without direct description. For example, Yelp is a company name that sounds like “yelping” or making noise, suggesting a platform for expressing opinions.
What Is a Registered Trademark?
A registered trademark, certified by the federal agency United States Patent and Trademark Office (USPTO), offers enhanced legal protection for an existing trademark with nationwide exclusivity. Federal trademark registration prevents other entities from registering similar trademark words within the same industry for a company name or logo.
While a registered trademark gives strong protection, it is limited to specific countries, meaning international protection requires separate trademark registrations. No trademark in one country carries over into another, so you may need to consider applying for a trademark on logos, names, or symbols in multiple countries, if necessary.
15 U.S.C. § 1051 governs federal trademark applications. The registered trademark represents the most comprehensive method of protecting a brand’s distinctive mark. Different services exist to help entrepreneurs file registered trademarks across multiple jurisdictions.
What Is Allowed to Be Trademarked?
You can trademark anything that distinguishes your product, service, brand, and business from the competition, and help consumers identify brands:
- Names: Trademark applies to a unique identifier for a business, product, service, blog, or band that distinguishes it from others in the marketplace.
- Images: Distinctive visual representations that can be protected if they uniquely represent a brand or product.
- Words: Specific terms used exclusively to identify and differentiate a company, product, or service from competitors.
- Logos: Trademark applies to graphic designs, logos, or symbols that visually represent a brand’s identity and are recognizable to consumers.
- Symbols: Distinctive graphical marks that serve as a unique visual representation of a brand or organization.
- Phrases and slogans: Short, memorable statements that capture a brand’s essence or marketing message.
- Colors: A color scheme, combination, or shade uniquely associated with a particular brand or product.
- Design: Trademark applies to a unique visual or structural configuration of a product that sets it apart from similar items in the market.
- Sounds: Distinctive audio signatures or jingles immediately recognizable as belonging to a specific brand.
- Characters/mascots: Trademark applies to a unique animated or illustrated figure representing and promoting a brand’s identity and values.
The USPTO is the arbitrator for whether to award a federal trademark registration. Two basic requirements for something to be trademarked: it must be used in commerce and it must be distinctive.
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 descriptive terms, generic terms, or descriptive words. Other examples that cannot be trademarked include immoral, scandalous, or deceptive words and phrases.
In essence, the most important thing is to make sure the trademark you are pursuing is distinctive and unique. The USPTO conducts thorough trademark searches to make sure there are no potentially confusing marks that may compete with your mark.
- Generic terms: Generic terms describing entire product or service categories (example: phone, furniture)
- Descriptive terms, phrases, slogans: Descriptive words identifying product or service features (example: lightweight, organic)
- Geographical terms: Location-based names identifying product origin (example: French cheese, California)
- Proper names and likenesses: Individual names cannot be trademarked (example: Smith, Lee)
- Misleading or confusingly similar trademarks: Marks that provide false or deceptive information about the product or service. (example: “natural” for non-natural products or “Micresoft” instead of “Microsoft”)
- Disparaging words: Offensive or shocking language
What Does Trademark Protection Do?
Getting a registered trademark to protect your idea can be very important in the long run to protect your legal rights. An existing trademark has the power to protect businesses’ investments in their brand identity.
- A trademark 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.
- A registered trademark on names, logos, products, or services helps customers easily recognize and find preferred products. The trademark can also facilitate product or service recommendations through visual brand recognition. Additionally, a trademark conveys business stability and trustworthiness.
- A trademark represents a brand and helps customers identify the source of a product or service. It enables businesses to differentiate themselves from the competition.
Common Law Protection
By using your registered 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 registered 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 registered 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.
When you file and obtain federal trademark registration with the USPTO, you will have more complete trademark protection for company names, logos, or phrases. Trademark allows you to exclude others from using your same trademark or something similar. This means you can pursue legal recourse against anyone infringing and obtain any associated damages.
How to Apply for a Trademark at the United States Patent and Trademark Office?
Once you do decide you want to pursue trademark rights for your company 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 trademark 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 and TEAS Plus.
The TEAS Regular application (which used to be called TEAS RF) provides the option of using a custom description of your products or services in the application. This can help distinguish your products or services from similar ones that could otherwise be a deterrent for approving your trademark application.
The TEAS Plus application requires you to pick the type of products or services your trademark falls into from a specific, preset list of choices. These choices are listed in the Trademark ID Manual.
Fees for Teas Applications
TEAS Plus application is 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.
The filing fees vary between the two trademark applications:
- TEAS Regular: $350 per class of goods or services
- TEAS Plus: $250 per class of goods or services
If the phrase does easily not fall into one of the categories, the TEAS Regular may be a better option for you. The c
Related Questions
How Does the Trademark Law Compare to Patent and Copyright?
Trademark protects branding, including symbols or words demonstrating the source of product or service. Copyright protects content and artistic works like song lyrics, books, and lyrics, whereas patent protects inventions and iterations of inventions. Registered trademarks, unlike patents and copyrights, do not need to be renewed in any specific time frame.
How Long Does It Take to Get a Trademark Approved?
The United States Patent and Trademark Office typically takes 12 to 18 months to complete the trademarking process. However, this timeline can vary depending on the complexity of the application and potential challenges. Once submitted, your trademark will undergo a thorough review by trademark-examining attorneys who assess its eligibility and potential conflicts.
What Happens if Someone Uses My Trademark Without Permission?
When an unauthorized party uses your existing trademark, you have legal grounds to pursue action for intellectual property infringement, including cease and desist orders, financial damages, and potential litigation. The trademark owner can seek legal remedies to protect their brand and prevent unauthorized use of their registered trademark.
Do I Need a Trademark Attorney to File a Trademark Application?
While not legally required, working with an attorney specializing in business trademarks can help navigate complex registration requirements and identify elements that cannot be trademarked. Professional legal guidance can significantly improve the likelihood of a successful trademark and help avoid potential application pitfalls.
Conclusion
Once you understand the intricacies of trademark law, you can receive protection against consumer confusion and safeguard the distinctive elements that set your work apart from the competition. Now that you know what can be trademarked, Goldstein Patent Law can provide expert guidance to help you seamlessly navigate the trademark process and achieve long-term success.
