What is a Trademark?

Trademarks are all around, and you probably even know them when you see them, but what are they?

To answer this question we will look at (1) what they are not, (2) how you get them, and (3) how they’re used.

The difference between trademarks and copyrights
A trademark is not a copyright, though both are valuable intellectual property—they simply protect different things. Copyrights protect the ideas of their authors when they are preserved in a tangible (physical) medium (i.e., books, canvas, etc.). Trademarks are not about ideas, but rather protect a brand or identity that is connected to a particular good or service.

Lets say you sell a soft drink called ESTOPPEL and your competitor wants to introduce their own drink, with the same name. Your rights to the trademark ESTOPPEL will prevent your competitor from using that name for a soft drink. This prevents marketplace confusion so that your customers will know the difference between your drink and your competitor’s drink.

How to establish a trademark
Trademarks exist under both state and federal law in the US. To establish a trademark right, the mark must be (1) distinctive and (2) in use in the marketplace. In other words, you must be (1) actively selling the good (i.e., the soft drink) or providing the services (what we call in the legal world, “use in commerce”), AND (2) the mark must be distinctive and not merely descriptive (you cannot call your soft drink SODA POP).

A registered mark with the US Patent and Trademark Office (USPTO) has important advantages, but you don’t need to register in order to have rights in your mark. As long as you use the mark in commerce, you have basic common law rights in the mark.

When is the right time to trademark?
Every new business must ask the question, “When is the right time to register a trademark?” If you register too soon, your business will incur unnecessary costs. If you register too late, you risk losing your rights to a trademark that is the crux of your brand.

You should consider: (1) that a federally registered trademark has a presumption of validity, so any legal action to enforce your mark will bypass a significant legal hurdle, and (2) that damages available to a young business if another infringes on your registered mark could mean the difference between success and failure.

If you are a young business, you should consider filing with the USPTO if you can afford the application and legal fees and you have your branding strategy in place that will maximize your new trademark and drive business to your door step.