1. Differences between trademarks, copyrights, and patents
Before we discuss trademark myths, let’s explain the differences between patents, trademarks, and copyrights, as business owners often confuse them. Copyright is a legal protection given to original creative works such as books, photographs, art, movies, and music. It grants the creator exclusive rights to reproduce, distribute, display, make derivatives of, and perform their work. Generally, copyright protection lasts for the life of the author plus an additional 70 years. For an anonymous work, a pseudonymous work, or a work made for hire, the copyright endures for a term of 95 years from the year of its first publication or a term of 120 years from the year of its creation, whichever expires first.
A patent, on the other hand, protects inventions and innovations. It grants the inventor exclusive rights to their invention, preventing others from making, using, selling, or importing it without permission. Patents can cover processes, machines, manufactures, compositions of matter, or improvements thereof. Patent protection typically lasts for 20 years from the filing date.
A trademark is a form of intellectual property that protects brands from counterfeiters and helps consumers identify and distinguish goods and services from one another. It can be a word, phrase, symbol, sound, or design that represents the source of the goods or services. Trademarks provide their owners with exclusive rights to use the mark in connection with specific goods or services and can be renewed indefinitely as long as they are properly maintained. Trademark protection ensures that consumers can trust the quality and reputation associated with a particular brand.
In sum, trademarks protect brands, copyright protects creative content, and patents protect inventions.
2. When should you apply to register your trademark?
Many startups and entrepreneurs mistakenly believe that forming a company as an LLC or corporation automatically trademarks and protects their business name. Wrong. Operating under a company name, rather than your own, potentially shields you from personal liability for lawsuits. So, your company would be responsible for settling the lawsuit and not you personally. However, this does not protect your company from being liable for trademark infringement if it uses someone else’s name or logo without permission. And if your trademark is in the company’s name and your company is sued and loses, you could also lose ownership of your mark.
Before you apply to register a trademark, you should perform due diligence, which involves searching for other marks that may resemble yours in connection with goods and services related to the products associated with your mark. Performing a proper trademark search is crucial because it can help you avoid the costly mistakes of spending time, resources, and money on a name that you were never able to use. After all, someone else had been using it before you. The failure to conduct a proper search can be a devastating mistake, forcing you to rebrand and start from scratch. And that may not be the worst part. You could be sued for thousands or even millions of dollars. This nightmare could possibly be avoided by hiring a trademark service to perform a comprehensive search.
You should apply to register your trademark as soon as practical but certainly prior to launching your brand. Before you start mentioning your brand on social media or to others not involved with your company, spending money on merchandise and apparel bearing the mark, buying signage or building a websites that mention the mark, or engaging in any financial transactions related to the mark, including signing a commercial lease, you should have already submitted your trademark application to the Trademark Office for processing.
3. Trademark renewal service
What’s a trademark renewal service? Unlike copyrights and patents, a trademark can last forever, so long as you correctly maintain it and file the necessary paperwork. You have to renew your mark every five years after registration for the first ten years, and then every ten years after that. Every so many years, you must prove that you are continuing to use the mark in connection with the goods/services listed in your registration. You do this by submitting a real-life specimen (not a mockup) of the goods/services, as a consumer would likely encounter them in the marketplace. The goods/services associated with the mark must be reasonably apparent from looking at the specimen. The specimen is often a photograph of the product in a store or a screenshot of the item near the checkout screen.
A good trademark renewal service will notify you of important deadlines and send reminders, so you don’t miss them. If you fail to submit a proper specimen and declaration during the mark’s renewal window, the USPTO will cancel your trademark, and you will lose the years of investment you made in growing the brand. Don’t let that happen to you. Choose a dependable, trustworthy trademark renewal service.
4. Trademark monitoring service
After performing due diligence and being convinced that your mark will likely register because it has few if any conflicts, you may consider using a trademark monitoring service. This service is also recommended if your mark has successfully registered, and you want to diligently police the marketplace to make sure that no potentially infringing marks emerge that may cause confusion with your designation. That’s where a trademark monitoring service comes into play.
A trademark monitoring service uses software to track your mark and its associated goods and services against marks filed with the Trademark Office that are similar to yours in sound, meaning, and appearance, along with the similar mark’s associated goods/services. The software generates periodical reports for review of its findings. These findings can alert you to possible conflicts, enabling you to address them immediately to preserve the strength and goodwill associated with your mark.
5. The difference between registration and trademark
A trademark is any distinctive word, phrase, symbol, or device used to identify certain goods/services as originating from a specific source, thereby distinguishing them from those of a different source. A trademark is registered when its application has been approved by its assigned examining attorney, and no one has opposed its registration within the applicable 30-day period. A registered trademark is more valuable than an unregistered one because a registered trademark allows its owner to
- have US Customs confiscate infringing goods at points of entry,
- be entitled to licensing opportunities to receive royalties,
- granted a presumption that your mark is valid in lawsuits,
- convince potential investors that you are the valid legal owner of your product,
- have infringing marks and knockoff goods removed from e-commerce platforms like Amazon and Etsy.
Owning a registered trademark is critical if you aim to grow your business into a national brand, ultimately receive passive income from licensing it, or reduce the risk that you will be forced to rebrand because you used someone else’s mark.
6. What’s the difference between a trademark and a service mark
A trademark identifies a product, a good, or something tangible that you can touch (except for software, which is sometimes considered a good). A service mark identifies a service offered. For example, the Coca-Cola can contains a beverage, which is a good, but the act of selling soda is a service. If this were your business, you would need at least two trademarks, one in International Class 32 for “Cola drinks” and one in International Class 35 for “Wholesale and retail store services featuring cola drinks.”