In today’s society, it is not enough to create a business, you must also try to make its name become a brand. After all, a brand is a recognizability, quality assurance, respect of colleagues, and love of customers. When choosing a product or service, the consumer associates it with the brand of a particular company.
The indicator of the success of a brand is the recognizability of its trademark. The word “brand” in marketing is understood as a set of data about the company, those associations that are attached to the product in consumers. A trademark is a part of a brand, a designation by which other people distinguish your company from competitors.
It is impossible to register a brand, but it is possible to register a trademark. Registration of a trademark, of course, is not necessary, but it must be done to protect your exclusive offer in the market from encroachment by third parties. In this article, we have gathered all the necessary information on trademark definition and its registration in simple words.
A bit of theory: What is a Trademark
A trademark is a company’s intellectual property object, the protection of which is guaranteed by law. It is used for the individualization of goods and services. It can be officially accepted on the balance sheet of the company and receive commercial benefits from it.
A trademark distinguishes a particular seller or product from other companies that sell similar goods. Its main purpose is to prevent other companies or infringers from misleading customers to sell their similar products or services. It helps protect a trademarked business by preventing other dishonest entrepreneurs from taking advantage of your success and achievements.
A trademark may be expressed in the following types:
- designations of textual nature expressed using font combinations (word forms, abbreviations, etc.);
- means of pictorial character – graphic objects without the use of text forms;
- designations of combined character – a complex of text and graphics in a single object.
Where trademarks are placed:
- On products (when labeling goods, on packaging, etc.)
- When providing services, on documents;
- On banners, signs, advertisements;
- On the Internet (in the domain, social networks, websites, etc.).
What cannot be registered as a trademark:
- A property and type of goods, including descriptive characteristics (Smart, Beautiful).
- Commonly used words (Bank, Pharmacy, Park).
- Historical monuments.
- Geographical names.
- State symbols.
- Works of art.
- Words with errors.
- Language and images that are contrary to moral norms.
Reasons for Trademark Protection
There are many reasons why a company wants to protect its trademark. A trademark is a valuable business tool that can help grow a business or help market and promote it. Depending on how a business uses its trademark, it can help tell a brand story, protect its place in the marketplace, and even improve the hiring of professional employees.
The beauty of a trademark is that, depending on the brand or its logo, it is instantly recognizable, regardless of language. It sends a strong message to consumers, especially brands that are respected and trusted by customers.
If the world’s most famous brands did not protect their trademarks, there could be many competitors or infringers misleading customers. Trademark protection helps avoid such situations. Trademark protection also prevents competitors from stealing the hard work that famous brands have done.
Trademark Registration
A company can obtain a certificate of registration for a trademark by proving that it has unique characteristics.
The right holder is provided with a full range of measures to protect the trademark, but it is necessary to register through the USPTO. The procedure consists of the following steps:
- Conducting a preliminary trademark examination for uniqueness;
- Sending the registration application to the USPTO through the USPTO’s Trademark Electronic Application System (TEAS);
- Formal examination is conducted to ensure that the application complies with the statutes;
- Issuance of a decision on registration of the mark in the state register;
- Registration of the trademark;
- Issuance to the right holder of a certificate for the trademark that has undergone registration.
From this moment the owner of the exclusive right to the trademark can use the whole range of actions to protect the object of individualization.
What To Do if a Similar Trademark is Already Registered
In such situations, a business has to choose between rebranding or continuing to operate with a trademark registered to another company.
- Rebranding: you will have to spend money on developing a new mark, changing the identity, registration, and fees. The main thing is to plan all expenses to comfortably allocate finances.
- Working under someone else’s trademark: if the violation is discovered, the company risks a significant fine. To this will be added the costs of a lawyer and the courts. It may also have to destroy products, equipment, websites, and advertising.
Uniqueness of a Logo
If there is a graphic element (original symbol, monogram, stylized image of any object or creature) separate from the verbal one in the logo, the contract with guarantees of originality of the result of the designer’s creativity is concluded and you are fully confident that such element was developed by you or the designer on your order completely from scratch and without any borrowings, you can even afford to refuse to check the graphic part of the trademark before registration.
International Registration of a Trademark
If a company has decided to work for export, it is possible to register a trademark under the Madrid system. In this case, intellectual property rights will be protected in the countries that are parties to the Madrid Agreement of 1891 and its Protocol.
What Happens if You Don’t Register a Trademark?
Unfair behavior of third parties:
- Competitors take away a part of your market – consumers who are going to buy your goods bought the similarity of designations and purchased a fake;
- reputational damage.
When a consumer comes across a low-quality counterfeit, he becomes disappointed in the brand and stops buying products marked with this trademark, including your original one. The company receives a flood of complaints and dissatisfaction from customers, and the image suffers. Not only existing customers but also potential customers leave.
Pitfalls
If a trademark includes not only a verbal but also a graphic element, ideally the rights to this image should belong to the company for which the trademark is registered, since one of the grounds for challenging a trademark is the presence in its composition of a work, the rights to which belong to a third party.
If the trademark includes an image, but the rights to the image have not been transferred to the right holder of this trademark, in the event of any disputable situation, the author may go and challenge this trademark in court. The trademark will be challenged by the author of the image in full, and the legal protection will be terminated both concerning the graphic element and the verbal element.
Consequently, the name will not be protected, and anyone can register the same designation between the decision to terminate legal protection and the filing of a new application by the company whose trademark has been challenged by the author of the logo. Thus, the company may lose not only the logo but also the entire trademark together with the word mark, which will result in significant losses for the business.
Trademark Protection
There are several ways to protect your trademark:
- administratively;
- through appeals to state authorities;
- judicially – through appeals to the court.
Appeals to law enforcement agencies to bring in persons illegally using a trademark are not the most effective way to protect your rights. Law enforcement agencies do not act too quickly and often do not see in the actions of infringers the corpus delicti. The most effective way of protection is civil law ways of protection, namely – appealing to the court with a claim for payment of compensation.
Conclusion
Having a registered trademark with the United States Patent and Trademark Office (USPTO) gives your business the ability to notify the public of your trademark, use your trademark worldwide to distribute your services, and legally use your trademark nationally. Without trademark protection, without trademark registration, it is harder to sue someone with a similar name, domain, or product.
A legal trademark registration gives you the legal right to your trademark, but it also means that the responsibility for protecting your trademark falls on your business. Registration simply gives you the right to sue, and it’s up to you whether or not you do so. It is important to remember that inaction can weaken your trademark and reduce your business’s revenue.
When it comes to protecting your brand, your trademark plays a predominant role in deterring competitors and attracting new customers. Your company’s trademark protects your business, gives you legal rights to defend against infringement, and promotes your brand.
