Trademark Frequently Asked Questions
What is a Trademark?
In simplest terms, a trademark is a designation of source for goods. By designation, we mean a source identifier: a name, word, logo, symbol, or phrase, even sound or scent, that serves to identify a manufacturer or provider of goods. To legally qualify as a trademark, the designation (1) must be capable of identifying the provider/manufacturer, and (2) the mark must distinguish the source of goods from other manufacturers. Visit this detailed article for a more detailed explanation of What is a Trademark.
What is a Service Mark?
Like a trademark, a Service Mark is an identification of source for services. By identification, we mean a source identifier: a name, word, logo, symbol, or phrase, even sound or scent, that serves to identify a manufacturer or provider of goods. To legally qualify as a trademark, the designation (1) must be capable of identifying the provider/manufacturer, and (2) the mark must distinguish the source of goods from other manufacturers. Visit this detailed article for a more detailed explanation of What Is a Service Mark.
What is Copyright?
A copyright is a type of intellectual property that protects original works of authorship. Copyright protects written content (literary works), works of art, graphic design, 3D designs and sculptures, photographs, architectural works (works of visual arts), recorded music (sound recordings), and screenplays, sheet music, choreography (works of performing arts). It is possible to copyright a logo. Visit this detailed explanation of how to copyright a logo.
Can I Copyright a Logo?
Yes. It is possible to copyright a logo. In order for the logo to qualify for copyright protection, the logo must meet a minimum level of creativity, which means that simple geometric shapes and font styles will not qualify for copyright protection. A visual arts copyright must contain a minimum amount of pictorial, graphic, or sculptural authorship to be copyrightable. Copyright does not protect familiar symbols or designs; basic geometric shapes; simple diagrams; or mere variations of coloring, font, typeface, or typographic ornamentation. 37 C.F.R. § 202.1.
Here is an example of a copyright registration for a logo.
Does Copyright Protect Words and Short Phrases?
Copyright does not protect names, words, slogans, or short phrases. Words and short phrases, such as names, titles, and slogans, are uncopyrightable because they contain an insufficient amount of authorship. The Copyright Office will not register individual words or brief combinations of words, even if the word or short phrase is novel, distinctive, or lends itself to a play on words.
Examples of names, titles, or short phrases that do not contain a sufficient amount of creativity to support a claim in copyright include:
- The name of an individual (including pseudonyms, pen names, or stage names)
- The title or subtitle of a work, such as a book, a song, or a pictorial, graphic, or sculptural work
- The name of a business or organization
- The name of a band or performing group
- The name of a product or service
- A domain name or URL
- The name of a character
- Catchwords or catchphrases
- Mottos, slogans, or other short expressions
Protection for words, phrases, and slogans is provided for under the trademark laws, in particular the Lanham Act. Contact our Trademark Attorney for a detailed consultation to register your name, phrase, slogan, or logo trademark. https://esquiretrademarks.com
How Is Trademark Different From Copyright for Logos?
Copyright law provides significant legal rights and benefits that go above and beyond trademark protection. That is why we advise both trademarking and copyrighting a logo. Copyrighted logos are automatically protected and do not require proof of sales like trademark protection. US Copyright Registrations are honored Internationally in any country who is a member of the Berne Convention. Unlike trademark, you can sue for copyright infringement even when the logo is used on unrelated goods or services. Attorney’s fees are authorized copyright infringement– but are rarely awarded for trademark infringement. Internet Service Providers are more reactive to copyright-based infringement than trademark-based infringement.
We strongly advise both trademarking and copyrighting a logo when possible. Visit our post for more detail about copyrighting a logo.
What Is Intellectual Property?
Intellectual Property broadly describes “creations of the mind” such as inventions; literary and artistic works; and symbols, text, and images used to identify a business. Intellectual Property, or “IP” Laws, are designed to protect these creations of the mind. IP laws generally fit into the following categories: patent law, trademark law, copyright law, and trade secret law.
- Patents protect Inventions or Methods that are new, useful, and non-obvious.
- Trademarks protect Source Identifiers. Source Identifiers are text, graphics, etc. that symbolize a business. Trademarks represent the identity of good or service.
- Trade Secrets protect confidential information that provides a competitive advantage.
- Copyrights protect original works of authorship fixed in a tangible medium.
View more information about What is intellectual property?
What is Patent?
A patent is an exclusive right granted for an invention, which is a product, process, or method that provides, in general, a new and non-obvious way of doing something, or offers a new technical solution to a problem.
What is TEAS?
TEAS or Trademark Electronic Application System is the software interface used to interact with the United States Trademark Office (USPTO) when attempting to obtain rights provided for under the Trademark Laws. The TEAS is used for filing trademark applications, communicating with Trademark Office Attorneys, filing responses to trademark rejections, and filing trademark appeals. In order to file documents using the TEAS trademark system, you must be an authenticated user. More information is available at https://www.uspto.gov/trademarks/apply/trademark-electronic-application-system-teas-1
What is the difference between trademark and copyright and patent?
A trademark protects word, phrase, design, or a combination that identifies your goods or services. A copyright protects. A copyright protects created works, such as novels, music, or movies. A patent protects technical inventions, such as medicine.
- Patents protect Inventions or Methods that are new, useful, and non-obvious.
- Trademarks protect Source Identifiers. Source Identifiers are text, graphics, etc. that symbolize a business. Trademarks represent the identity of good or service.
- Copyrights protect original works of authorship fixed in a tangible medium.
View more information about What is intellectual property?
Can I trademark a name with slightly different spelling?
No. Minor changes in spelling will not help you avoid a trademark rejection for a similar trademark for the same or related goods or services. Adding insignificant words like “The” or “A” or “Company”. Changing the punctuation, or adding a logo often does not help in overcoming a rejection based on a blocking trademark.
The similarity of the marks is one main consideration when reviewing trademark applications. The USPTO Examining Attorney will look at the (1) sight–whether the marks appear the same, (2) sound–whether the marks sound the same, and (3) meaning–whether the marks have the same meaning. So, if your mark has a different spelling but sounds the same as an existing mark, you will likely be refused for a likelihood of confusion with that mark, and it will not be successfully trademarked.
What is the fee for a petition to revive an abandoned trademark application?
The Trademark Office government fee for a petition to revive an abandoned trademark application is $150. This is the petition fee, additional fees may be required based on the reason for abandonment. For example, if the trademark application was abandoned for failure to provide a statement of use ($100), or extension of time ($125), those additional fees are also required to satisfy the petition to revive requirement. The current schedule of USPTO Trademark Office Fees is available here.
What are the Trademark Office Filing Fees?
Government fees are between $250 and $350 per class. The US Trademark filing and maintenance fees are published on the USPTO website.
What is an unregistered trademark?
In the United States, an unregistered trademark is a legal right that is afforded to one who adopts and uses a name, phrase, or logo to identify the source of goods or the provider of services. Unregistered trademark rights are recognized by federal laws, state laws, and at common law. Registering a trademark under the United States federal trademark system will provide additional registered trademark rights and benefits not given to unregistered trademarks. Read my article about common law trademarks for more information.
Which symbol is used for an unregistered trademark?
The ™ Symbol is commonly used to designate a claim to rights in an unregistered trademark. The ™ symbol has no legal meaning, but is used on unregistered marks as a “no trespassing” sign. Visit our post about Trademark Symbols for more information.
What is the difference between a registered and unregistered trademark?
In the United States, a registered trademark owner is given additional rights and presumptions under the law. A registered trademark provides nationwide rights in all fifty states and U.S. Territories. In court, a registered trademark (on the Principal Register) entitles a plaintiff to a presumption that the trademark is valid and enforceable. With an unregistered mark, the plaintiff must plead and prove the underlying facts that has a valid and enforceable common law right to exclusive use of the trademark or service mark. Visit our post about the Benefits of a Trademark Registration for more information.
Can you license an unregistered trademark?
Yes. It is permissible to license an unregistered trademark. In the United States, you can acquire trademark rights without registration. Those acquired common law unregistered trademark rights can be conveyed, sold, assigned, or licensed similar to registered trademark rights.
Is an unregistered trademark protected?
An unregistered trademark right is enforceable in the federal and state courts provided the owner can show the mark is protectable, and the owner has adopted and used the mark in connection with its goods or services. With unregistered trademarks, common law rights exist in the space or region where they actively do business. The owner of rights in an unregistered mark can oppose pending trademark applications. Further, the owner of an unregistered trademark can petition to cancel a registered trademark under some circumstances. Read my article about common law trademarks for more information.
What is an unregistered trademark called?
An unregistered trademark is commonly referred to as a “common law trademark”, or simply a “trademark”, or “service mark”. In cease and desist letters, lawyers typically state that the owner has acquired rights in the mark by use in commerce with respect to its goods or services.