Misunderstood: Trademark Basics

Today it seems like everything is trademark protected. So, you should register a trademark with the USPTO too. Um… Shouldn’t you?

Maybe not. Not everything is registrable.

The most basic principle, which is often misunderstood, is this: You must be using, or intending to use, your trademark as a trademark.

I know. That’s confusing and circular.

What I mean is that your trademark must be a source identifier that helps the public to set your goods or services apart as different. If you’re selling goods, it has to be on the tag or label. If you are offering services, it has to be on the advertisements (including the applicable website). I recommend that you use the ™ symbol whenever you use your trademark—but, do not use the ® symbol until the trademark is officially registered.

Also, the trademark must be currently in use to be registered. You can file an application saying that you are intending to use a trademark, but it won’t actually be registered until you swear it is in use and provide the USPTO with a specimen (that label, tag, or advertisement I mentioned). The USPTO will give you a deadline, so you shouldn’t file unless you truly will use in the relatively near future.

If you want to know whether what you want to be registered is really a trademark, call an attorney, like me, who has extensive trademark experience. A trademark attorney can help you realize what you’re doing right and what you’re doing wrong. And, she can do a search to help you decide if your trademark is too similar to someone else’s registered trademark to have a real chance of registration.

Don’t wait until you’ve invested a lot of time and money. Find out now.

Just a note: I’ve met many people who were misinformed about trademarks. Getting advice from an experienced practitioner is an important investment in your future that can save you a lot of unnecessary frustration.


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