The Basics of Trademarks

If you are in business, you probably already have a trademark even if you don't know it. Knowing the difference between the categories of intellectual property is essentially to protecting your ideas. And since trademark is generally the most common, it is a good place to start.

Generally, a trademark distinguishes products or services as unique and associated with a particular creator, business or person. It can be a company name or a product name that distinguishes it from those made by others, or any other distinguishing characteristic of a product or service. 

Often a trademark arises without the owner realizing it because it does not have to be registered or filed with any government agency to be protected. Simply conducting business or selling products under an exclusive 'mark' or name, or with a unique and exclusive characteristic will give rise to a trademark. Importantly, that exclusive use of a unique mark can entitle to the owner to prevent or preclude others from using it also. This can be true even if the oft-seen ™ notation is not used in association with the mark. 

Registered trademarks on the other hand, designated by the ® notation, are only applicable to those trademarks registered and recognized by the USPTO (United States Patent & Trademark Office). These trademarks are given greater protection than unregistered trademarks and can even allow the owner to protect them internationally. In contrast, the unregistered trademark is only enforceable in the geographical area or market where it is used in association with unique and distinguishable goods. In other words, a common law trademark could be used numerous times by multiple people without any infringement as long as they operate in different cities, states or geographical areas.

If two or more people or companies use the same or very similar name or trademark, one may be entitled to seek to stop the others due to trademark infringement. Whether an infringement exists is typically tested by whether or not the two trademarks are 'colorfully similar' or will cause confusion on the part of consumers as to the source of the goods or services. This confusion test is often the critical test. If the allegedly infringing trademark is not so similar that it may cause confusion, then typically no infringement exists. This could be because the two names are not that similar or the two businesses are would not be confused because they share a similar name. For example, AAA Plumbing, Inc., (a trick similar to today's SEO done to get to the top spot in the phone book), may be similar to AAA Dry Cleaning, but it is unlikely to cause much consumer confusion. Someone looking to clear a stopped sink will not likely be confusingly mislead into calling the dry cleaner. No likelihood of consumer confusion exists when two goods with the same or similar trademarks don't compete in the same area.

So, if you already offer unique products or services under a name distinguishing you from the competition, you likely already have an enforceable trademark. Take some simple steps to protect your business and distinguish yourself from the competition. The least you could do is slap that ™ all over your products, websites and marketing materials. Also, do a simple trademark audit by searching your market for competitors using the same or similar trademark. If you have a local business, use Google local search tools and check the phone book. Make sure that others are not taking away customers by using your trademark by using it also, by co-opting it for their search results or returning their website based on your trademark as an adword. Any of these could be trademark infringements. If you find that someone is infringing on your valuable trademark, you may consider contacting an attorney.

Likewise, check to be sure that the potential trademarks you are using are not infringing on another's trademark. An infringement could not only expose you a legal action looking to stop your use of the mark and for damages, but it also means you are preventing yourself from standing out in the crowd and distinguishing your products or services.