Protecting your Passion: Trademarks

On Tuesday we learned that Trademarks are any word, name, symbol, or device used in commerce to identify and distinguish the goods of one manufacturer or seller from goods manufactured or sold by others. Service marks are used to distinguish services, rather than products.

So, for purposes of the wedding industry, if you are looking to protect the brandname of your business and you have tangible goods, you would want to use a trademark.  If you have a service business, you would want to use a service mark.

First, let’s break down the symbols (those little doohickeys after a brand name)…

There are typically three symbols you can use to trademark your brand.  (We’ll discuss the process later.)

TM - TM is used to show that you are the owner of that word, name or symbol.  This is something that you can do when you have not legally registered the name with the US Patent and Trademark Office (USPTO).  I use it in my business for our Yumminess brand of DIY stationery:

SM – SM is used similarly to the TM, but for a name that is used for services.

® – This is the symbol that is used when you have registered your trademark with the goverment (USPTO).  You can only use this when you have been approved by the USPTO.  I use it in my business with the mmm… paper brand:

So… is registration required, or can just use the “TM”?

According to the USPTO, trademark is not required.  However, there are some advantages:

• notice to the public of the registrant’s claim of ownership of the mark
• a legal presumption of the registrant’s ownership of the mark and the registrant’s exclusive right to use the mark nationwide on or in connection with the goods and/or services listed in the registration
• the ability to bring an action concerning the mark in federal court (that means you can sue someone who uses your brand name)
• the use of the U.S registration as a basis to obtain registration in foreign countries
• the ability to file the U.S. registration with the U.S. Customs Service to prevent importation of infringing foreign goods

My advice is this… (but, don’t hold me legally liable for your decisions)…

In the first year of your business, mark your brand as “TM”.  This is only because the registration process costs $375, a large sum for some new businesses.  You want to make sure you stick with your name and that entrepreneurship is something you want beyond the first two years.  I love a comment posted to yesterday’s post from Charles of Winding Road Studios.  He recommends the “Poor Man’s Copyright” which could easily be applied to the trademark as well:

“If you mail yourself whatever material you would like copyrighted (or trademarked) and keep it sealed in the stamped and postmarked envelope, that can serve just as well as the Library of Congress (or USPTO) papers. You have a verified date from a government agency (USPS) with your creation inside. It works!”

(Editor’s Note: Please note that should you go to court with another company over your trademark, a “poor man’s trademark or copyright” will not have any weight over a trademark that is legally register with the USPTO.  If you want to ensure ownership over your name, you must have it registered with the USPTO.)

So, what happens when you want to make it legal?

These days, the USPTO makes it easy to apply for a trademark online.  You can input all of your information and upload your images to the site…  No paperwork to fill out.  Here’s how you do it (as summarized from the USPTO site):

1. Research the USPTO TESS (Trademark Electronic Search System) to ensure that no one else has registered your name.  I HIGHLY recommend doing this even if you are just branding your name with the “TM”.
2. Draft a description of goods and/or services.
3. Consider the depiction of your mark:
   You’ll use a “standard character format” if you register words, letters, and numbers without claim to any font style, size, or color. (This is important if you plan on changing your branding in years to come.) You’ll be assigning broad rights to the use of these words as combined. (For example, I own the combination of “mmm… paper” to be used in any design.)
   The stylized or design format, on the other hand, is appropriate if you wish to register a mark with a design element or word(s) or letter(s) having a particular stylized appearance that you wish to protect. (Think of coca-cola.)
4. File online using the Trademark Electronic Application System (TEAS).  It is actually not very complicated to file.  Be certain to read everything very clearly and answer everything completely.  If there is anything incomplete, the USPTO will have to go back to ask you for clarification and this can lengthen the time it takes (typically a few months).  If you file anything incorrectly it can affect your ownership of the mark.

VOILA!  There you have it!  Come back tomorrow for an awesome industry insider!