What is a Trademark and do I need one?
Updated: Nov 13, 2020
What is a Trademark and do I need one?
In general, a trademark is a “word, phrase, symbol, or design, or a combination thereof, that identifies and distinguishes the source of the goods of one party from those of others.” (See USTPO Manual).
How Does a Trademark differ from a Copyright?
A copyright is used to protect unique works which “includes things like photos, books, movies, songs, paintings, software code, architecture and even the article you are reading right now. Copyrights give their owner the exclusive right to reproduce and profit off the underlying work.” (New York Times). For more details on copyrights check out one of my former blog posts here. A trademark helps to distinguish and clarify one product from another and relies on a test to determine the if a defendant’s use “is likely to confuse a consumer.” (NYT Ibid.) This “likelihood of confusion test” is why trademarks are registered in different categories.
What are Trademark categories?
There are 45 Trademark categories, broken down into either Goods or Services, and each category addresses a specific area of industry or commerce. For example, McDonalds is registered under a few categories, including category 30 (Staple foods) but not in category 13 which is firearms. Thus, it might be possible for a firearms company to be named McDonalds because there is little likelihood of confusion between the two brands and both hold their own in their respective trademark categories.
Can I trademark a logo or the name of my company?
In many cases yes, you may be able to trademark your company name and/or logo. An attorney can help with a trademark search to determine the likelihood of confusion with any other existing trademarks. Assuming there are no conflicts, registering your logo and/or company name can both be done but in most cases, should be done separately to provide the owner the most protection.
Do I need a Lawyer to File a Trademark?
It is possible to file a trademark without an attorney, however it is not a simple process and utilizing an attorney can save time and in the long run and therefore money as well. The improper filing of a trademark application can lead to requests for changes, called office actions, from the USTPO’s (United State Trademark and Patent Office) examining attorneys, or a refusal of your application. If your application is rejected, your filing fee will not be returned!
How Much does it Cost to File a Trademark?
Each category a trademark is registered in costs at least $225 (using the electronic registration process). Attorneys might charge anywhere from $500 to $1500 to register each trademark.
Is an LLC or Corporation the same as a trademark?
No, an LLC and a corporation are business entities, they are not trademarks. Registering an LLC or Corporation limits another company’s ability to utilize that same name in the state it is registered but that does NOT offer trademark protection and may not protect the name outside of the state of use.
Helpful links for more information on Trademarks
United States Trademark and Patent Office - basics
Trademark, Copyright or Patent (Video)
Would You like Help Setting Up a Trademark?
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Jason Bost, Esq., MBA, is an attorney in the State of New York who focuses on civil litigation and entertainment law, and is the managing partner of the New York Offices of the Law Firm of Patel, Soltis and Cardenas LLC a firm providing legal counsel and representation on matters related to intellectual property, entertainment, trademark, real estate, foreclosure defense, bankruptcy, trust and estate planning, probate and surrogate court issues, immigration and civil litigation. If you have any questions feel free to contact Mr. Bost at 973-200-1111 or by email at firstname.lastname@example.org