After I create a logo or help a client come up with a tagline, some of them ask me afterward about trade marking. I would have a blank look on my face due to not knowing how to even point them in the right direction. I want to equip all of you with the knowledge to give to your clients if they ever ask about this subject, and maybe, it might be a service you want to offer your clients.
There are different types of trademarks, and I will list them here with their definitions.
Trademarks – “A trademark includes any word, name, symbol or design, or any combination used, or intended to be used, in commerce to identify and distinguish the goods of one manufacturer or seller from goods manufactured or sold by others, and to indicate the source of the goods.”
Service marks – “Any word, name, symbol, design or any combination used or intended to be used, in commerce to identify and distinguish the services of one provider from the services provided by others, and to indicate the source of the services.”
Certification marks – “Any word, name, symbol, device or any combination used, or intended to be used, in commerce by someone other than its owner, to certify regional or other origin, material, mode of manufacture, quality, accuracy or other characteristics of such person’s goods or services, or that the work or labor on the goods or services was performed by members of a union or other organization.”
Collective marks – “Trademarks or service marks used, or intended to be used, in commerce by the members of a cooperative, an association or other collective group or organization, including a mark that indicates membership in a union, an association or other organization.”
Basically, a trademark is an approved filing with the federal government that makes sure no one else can use your symbol, logo, name … essentially your mark and sell the same goods or services as you do. You can’t use Nike’s “swoosh” and sell tennis shoes. Even if your business name was “Sam’s Tennis Shoes” when people see that Nike swoosh, they will think that you’re Nike, and that is illegal.
Once you have created your “mark,” you want to search to see if someone else is already using it. You can actually do a free preliminary search yourself by using the Trademark Electronic Search System or TESS. This search will not officially determine if your mark is being used by another registrant, but it will give you a good idea. By doing this sweep first, you can get a look at who is already registered with the United States Patent and Trademark Office (USPTO) and then make the decision whether or not to file for registration.
If after your search you would like to register, you can file with the USPTO. Keep in mind; this is not something that you have to do. If you create a logo for your client (or yourself) and you want to use it without having it trademarked, this is not against the law. But if someone takes your logo and uses it for their own business and provides similar products or services, without the trademark it will be more difficult to bring action against that company in federal court among other things.
Also, the USPTO will file a registration for your trademark, but they do not enforce your sole right to use the mark. If you have the approved registration and see the mark being used by someone else, you have to take action against that person. The USPTO will not do it for you.
After you’ve filed your application with the USPTO (the form is available online), an examining attorney will review the application and make sure that it complies. This can take a number of months. In the meantime, you may use the symbols of TM or SM next to your mark while your application is being reviewed. This shows people that you are currently filing for Trade or Service mark. But you can only use the Registered mark ® after your application is complete and your registration has been approved.