Legal Guide

Trademarks 101: What Entrepreneurs Should Know

Startups and small businesses should take trademark law seriously! You must protect what’s yours and avoid infringing the trademarks of others.

Whether in Kansas City or on the coasts, it is critical that startups and small businesses understand and comply with trademark law. In this post we’ll walk you through the basics of what you should know. (Confused about IP? See the differences between copyrights, trademarks, trade secrets, and patents in this guide.)

 

What is a trademark?

Trademarks exist to protect consumers, not businesses. The idea is that when someone buys a computer with the Apple logo on it, the consumer should be able to rely on that logo as an identifier of where that computer came from; i.e., Apple, Inc., in Cupertino, California.

Of course, trademarks benefit businesses too in that once a business obtains trademark rights, they can prevent other businesses from using a similar name that is likely to create consumer confusion.

Businesses can obtain trademark rights in business names, logos, slogans, and even colors and scents. (Even Darth Vader’s breathing is trademarked! See this.)

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How do you secure a trademark?

The first person to use a mark on a specific good or service within a geographic area will obtain “common law” trademark rights in that mark, at least with respect to the area in which they use the mark. If you want nationwide rights, you either have to be the first to use your mark nationwide or obtain a federal trademark registration. For that reason, smart entrepreneurs will file a trademark application for a Federal Trademark Registration with the USPTO as soon as possible.

Here are a few other quick, but important, aspects to trademarks:

  • Trademark Searches: Since trademark rights stem from use in commerce, it is always a good idea to perform a trademark search before using a new name for your business.
  • Strength of Your Mark: Generic marks are impossible to protect (things like “BBQ Shack” or “Fast Food”). Descriptive marks are really hard to protect (like “Holiday Inn” for a hotel). Suggestive marks (“Coppertone” for sunscreen) and arbitrary marks (“Apple” for computers) are much easier to protect.
  • Goods/Service Classes: Trademark rights are always specific to goods and services. That’s why Delta Faucets and Delta Airlines are both allowed to use “Delta” – one sells faucets, the other provides air travel.
  • Length of Protection: Once you obtain trademark rights, you can generally maintain your rights for as long as you use your mark in commerce (although you do have to renew registrations).

 

What constitutes trademark infringement?

If a business begins using someone else’s trademark (or any mark confusingly similar to it) on similar goods or services as the prior user, then the junior user is likely committing trademark infringement. This means the prior user can force the junior user to stop using the trademark and either (a) shut down; or (b) rebrand their goods or services.

The takeaway for you is that (1) you should constantly monitor the market to stop people from infringing on your trademark (otherwise you might lose protection); and (2) you should be proactive about making sure you are not infringing the trademark rights of other parties because changing your name can be very expensive.

(This article is general in nature and is not legal advice.)

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