Everyone has heard of a trademark, but not everyone knows what it is. Fewer understand the importance and value of trademarks and why they are essential to nearly every business.
The most common trademarks consist of a single word (Fishcamp®), a group of words (Outside Hilton Head ™
™ )or a slogan (Docking Made Easy®) that identify a business. However, trademarks may also include the shape of a product or a product’s unique packaging design, a sound, a scent and a color.
In its simplest terms, a trademark is an indicator of the source of a particular product or service. While a trademark is technically a mark used to indicate the source of products or goods, and a service mark is used to indicate the source of services, it is appropriate to generally refer to both as trademarks.
A trademark is a business’ brand and its identity. It is the house mark for an entire line of products or service offerings and can also identify the individual products and services unique to a company. It can be the same as your company’s name or it can be completely different.
Protecting a trademark is increasingly important to a business because it provides the owner with the exclusive right to use its trademark with its particular products or services. It allows you to prevent a competitor from using a mark similar to yours with a related business and it sets your business apart from your competitors.
Trademarks may be protected at the state and federal level, as well as internationally, depending on whether you do business within a single state, throughout multiple states or in different countries. Once registered in the U.S., the U.S. Patent and Trademark Office, if federally registered, or the various state departments, if registered at the state level, will help a trademark owner by refusing the registration of confusingly similar trademarks by unauthorized third parties.
Thinking of a creative name for your new business may seem fun and harmless, but proper steps must be taken to assure your trademark can be registered and that you avoid infringing on someone else’s trademark. An extensive search should be performed to determine if your trademark is available, preferably before substantial funds are spent developing the brand in cases changes are required.
Keep in mind that the strongest trademarks are those that are fanciful or arbitrary and have no connection to the products or services being sold, i.e., Apple for computers is stronger than Hilton Head Computer Company.
Generic and descriptive terms should also be avoided.
A trademark should be treated like other valuable assets and not forgotten after you cross it off your to-do list when setting up your business. Trademark owners must be vigilant and contact parties that appear to be infringing to prevent unfair competition or the dilution and weakening of their brand. As businesses grow, additional trademarks should be considered to expand the protection afforded to a business’ brand and solidify its market position.
The right trademark attorney is essential to protecting your brand, your creativity and your business.
Michael C. Cerrati practices in Belzer PC’s Hilton Head office, regularly advising trademark and copyright owners on the proper selection, clearance, use, licensing, and protection of their intellectual property both in the U.S. and abroad.