How To Trademark A Name For Small Business? Free Guide 2023

Many pieces of a business can and should be protected against intellectual property theft and infringements. Intellectual property protection means that the inventor, designer, developer, or author of an idea has legal protection against other people wrongfully usurping or otherwise profiting off of the idea, invention, or creation. 

Patents, trademarks, and copyrights are protections against these kinds of infringements. With a patent, copyright,^[1] or trademark protection, a business owner can determine in court that they are the owner of a creation and that profits from the creation should only go to them/their business. 

This article will explain trademark rights, what makes up common law trademark rights and federal trademark indicators, and how, as the trademark owner, you can protect your creation. 

How To Trademark A Name In 3 Steps?

The trademarking process should begin at the trademark office, USPTO. Some SMBs will choose to begin an LLC or corporation rather than trademarking their business; some will choose to apply, in addition, to filing LLC or incorporation paperwork. In either case, you’ll want someone familiar with trademark law. Here’s where to start with your application:

Search Available Name

The first step is to begin a trademark search to ensure your phrase or usage is not already trademarked. If there is already a mark registered, you will need to change your word choice, logo, or another symbol enough to be differentiated from the initial filing by the United States Patent and Trademark Office (USPTO) and the public. The USPTO is a federal agency. Remember, the point of this type of mark is to protect your IP, business name, invention, or creation.

Prepare A Trademark Application

The second step is to begin the application process. This can be found on the trademark office website. You will need to create an account, fill out the forms, and write down your tracking number so that you can track the status as you go through the Trademark Electronic Application System (TEAS)^[2] to a government patent attorney for review. Once the application requirements are submitted, your application will be assigned to a trademark attorney. In some cases, especially with inventions, a patent attorney may be required. The lawyer representing your application will present the case to the USPTO examining attorney for a decision. Trademark applications can take a few weeks to several months to complete, and will result in one of two decisions: the application process will be accepted or rejected. 

Apply Trademark Application

Once approved, the work is just beginning. It now falls to your or your private attorney to protect and defend your existing trademark. Existing trademarks cannot be infringed upon, and as the trademark owner, if another business tries to infringe, it is your responsibility to report the infringement. Such a dispute can be solved with a letter from your lawyer but may require going to a federal court for an official judgment. Small business owners can begin defending their trademark as soon as the publication date for the application is met. 

What Is A Trademark?

Many things can be a service mark or trademark. Any word or phrase that is unique to a business, symbol or design, or combination of words or phrases with symbols and design elements can become trademarked to represent a small business, invention, or other entity. Once a trademark is filed it cannot be used by competitors or any entity other than the original filer. If another entity tries to use the trademark for profit, that use can result in legal prosecution including fines and even jail time if the offense is deemed large enough. 

One of the most well-known trademarks is the Mcdonald’s “M”, also known as the Golden Arches. This trademark is synonymous with the fast food industry and the McDonald’s brand. If a business called Mcdonald’s Law Service tried to use the Golden Arches as part of its logo, that would be an example of trademark infringement. 

Should Your Business Get A Trademark?

Do you need to trademark your business? This depends on what your business is and what your goals are for the business. Trademark protection ensures that your business is protected against someone else using your trademarked name and profiting from it, and can also protect your interests should a similarly named business face legal action; the trademark could ensure that should that similar business be sued, you could take defensive legal prosecution to protect your name. Also, if you do not have a trademark and the other business does, you could be forced to change the name of your business even if your business was started first. Trademarks can also help to differentiate between similarly named businesses, could make your business more attractive to investors and potential partners, and may help build the brand into a regional or national brand name. 

Types Of Trademarks

There are several types of registered trademarks.^[3] These include the generic mark, the descriptive mark, the suggestive mark, the fanciful mark, and the arbitrary mark. An example of a generic mark is something very generic: “The Grocery Store”, for example. This is not descriptive of a specific store and could harm other grocery stores so a court would not grant this application. A descriptive mark goes further than the generic because it includes some kind of descriptor that is specific to that business, allowing the consumer to recognize it and identify it with the brand filing. The McDonald’s Golden Arches is one such example. A suggestive mark is a mark that suggests qualities of the actual product or service. An example of a suggestive trademark is the Microsoft logo, which is recognizable by most people but doesn’t describe the products on offer. A fanciful mark is unique to that business, such as the Nike “swoosh” or the Adidas stripes. An arbitrary mark is a mark that looks like one thing but doesn’t represent that thing – like Apple’s Apple with the bite out of it. We all know that indicates a tech company, not an apple orchard. 

One final type of mark is the service mark. This is similar to the above marks, but instead of representing a product or a service, only represents a service. An example of this would be an electrician or electric company that uses a broken lightbulb as part of its logo. This would identify the type of service – fixing your electric service – that the company offers.

Considering A Trademark Registration Service?

There are several ways to trademark a business name, and many online services will help you apply. These businesses will supervise the registration process for small business entities, help to determine if the same or similar names need further differentiation, and may help you if legal trouble arises.

The Top 2 Trademark Registration Services

Incfile

Incfile is a business filing company offering access to LLC filings and other legal services. Their pricing structure is cheaper than competitors, starting at $299 including filing fees. However, their plans do not include live chat support, which may be a problem depending on the type of services needed. 

Rocket Lawyer

Rocket Lawyer offers many legal services in addition to the trademark application process; their plans for trademarks start at $99 for nonmembers or $499 per year for comprehensive services.  In addition, they offer one-to-one lawyer contacts, LLC and corporation filings, and other legal services. If you believe you will need additional legal services or assistance, they may be the best choice, however, their price structure may be too high for new business owners. Some services require you to pay additional fees.

Differences Between All Forms of Intellectual Property

There are several types of IP. These include trademarks, patents, copyrights, and trade secrets. Trademarks are marks that identify and differentiate your business name from competitors. Patents are used to protect inventors and inventions for a specific period. Copyright applies primarily to written property like books, music, lyrics, poetry, etc. A copyright may also include a sound mark. This is a trademark that utilizes a specific sound to identify the product. Finally, trade secrets include the formulas, processes, practices, and designs or instruments that have economic value as part of the patent, invention, copyright, or trademark of a product. 

Final Thoughts

You do not have to have a trademark to run a business, however, this type of intellectual protection can protect you and your business from competitors. The filing prevents a competitor from using your logo, business name, slogan, and other IP for their profit. If possible, trademarking your intellectual property can help to protect you in the case of legal issues, can help you build your business, and may help you differentiate your business from competitors. 

Frequently Asked Questions (FAQs)