How to Establish a Trademark

3 min read • Aug 01, 2019 • Barry Eitel

A company name and logo are essential parts of any business, but you will need to do some work to ensure others don’t encroach on your small business’s intellectual property. The security of a registered trademark, though, is well worth the effort.

What Is a Trademark?

It can be easy to confuse trademarks and copyrights. Generally, a trademark protects a company’s brand names, logos, and short slogans. The concept of trademarks in the United States was defined by Congress in 1946, and the US Patent and Trademark Office now administers trademarks.

Copyright law, which has been around for centuries, is typically more concerned with protecting whole-cloth intellectual property such as literary works or software code. Copyrights are actually discussed in the Constitution and protected by the US Copyright Office.   

The government felt compelled to provide special attention to trademarks over fears that consumers could be confused by branding or product names that were too similar.

Check with the Patent Office

The US Patent and Trademark Office has made it fairly simple to register a trademark online on its website. Before starting an application, you should search for your proposed trademark using the agency’s Trademark Electronic Search System (or “TESS”) database. 

Using the database, you can check to see if your proposed trademark is already registered by another company.

US trademark law protects the first entity to use a name, logo, mark, or slogan in a geographic area, even if the entity does not register with the government. However, even if you can prove you are the first to use a trademark, your application will be rejected if another entity has it registered. At that point, you would want to speak to an attorney about how to proceed.

Register Your Trademark

If no one has claimed your proposed trademark, registering a trademark is relatively straightforward and takes about 90 minutes to complete.

You will need to note when the trademark was first used in commerce and tell the office which category your business falls under. You will need to let the office know if there is a specific design component to your trademark.

Generally, you will receive the broadest protection if you don’t include design requirements. 

Additionally, you will get broader protection if you don’t include a domain extension (like “.com”) in your trademark.

Common Stumbling Blocks

The biggest issue you will likely run into is that your proposed mark is registered to someone else. If you find this is the case, you will want to talk to a lawyer right away.

Another common problem can arise if your proposed trademark is too generic, such as a hair salon business named “Hair Salon” or a logo that is a generic smiley face.  

Talk to a Lawyer

It is smart to involve a lawyer on your trademark journey—an attorney can help search for conflicting trademarks and with filling out an application. Trademark lawyers, like the ones at LegalZoom, can help you ensure your application is as strong as possible. They can also help you achieve the broadest possible protection for your trademark.

Barry Eitel

Barry Eitel has written about business and technology for eight years, including working as a staff writer for Intuit's Small Business Center and as the Business Editor for the Piedmont Post, a weekly newspaper covering the city of Piedmont, California.