What is a Trademark in the Marketing Industry? - Fordham Intellectual Property, Media & Entertainment Law Journal
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What is a Trademark in the Marketing Industry?

What is a Trademark in the Marketing Industry?

Trademarks are a type of intellectual property consisting of a word, name, symbol, or device that distinguishes products or services from a specific source from the products and services of others. Trademarks (™) are typically used to identify products, while service marks (℠) are used to identify services.

Trademarks and service marks are essential in the world of marketing because they help customers identify those trademarked slogans and designs with a specific brand. Not only does this help the brand build recognition with their target audience but it also helps customers ensure they’re using a brand they trust. Trademarks and service marks protect the rights of owners and the safety of consumers.

That said, how do you go about creating a trademark or service mark for your brand? How do you register for one? Let’s take a closer look at the different trademark symbols and how you use them.

Establish and Register Your Trademark

You can establish a trademark without registering for one, although it is not recommended. Legally registering your trademark helps to protect your business. To register, you’ll need to file with the United States Patent and Trademark Office (USPTO). It’s best to hire an attorney well-versed in trademark law and protection for this process because of the strict guidelines, deadlines, and fees associated with it.

A business with an unregistered trademark will use the ™ symbol over their brand name. A business with a registered trademark will use the Ⓡ symbol over their brand name. The difference between an unregistered and registered brand name is the legal protection behind each trademark.

Unregistered trademarks only give you protection in the state where your business is registered and it’s only protected by common law. Registered trademarks have federal protections that the USPTO provides and your trademark is protected in all 50 states.

What’s the Process for Registering a Trademark?

Before you register your trademark with the USPTO, the organization recommends that you ask two questions first: How difficult will it be to protect your trademark based on its strength and is your trademark capable of being registered?

Referring to the first question, your trademark needs to be distinctive enough from other marks or products. You can use the public search database the USPTO maintains to search for similar logos, names, designs, phrases, and more to ensure your trademark is truly unique.

The second question refers to whether you’re applying to register for your brand or if you’re filing a patent for some other form of intellectual property. Trademarks protect words, symbols, designs, logos, or other parts of your brand. If you’re not registering a good, but a service, you’ll need to use a service mark.

A patent is different from a trademark or service mark. Patents are limited duration property rights that relate to an invention. 

A copyright is also different from trademarks, service marks, and patents. Copyright is used for creative works and protects the authorship of those works. Copyrights aren’t handled by the USPTO, but by the U.S. Copyright Office.

How Do Trademarks Protect Your Brand?

Trademarks have no expiration date, only maintenance fees. You pay these maintenance fees between the fifth and sixth year after you’ve filed for your trademark registration and then at the 10-year mark. After that mark, you only have to pay a fee every 10 years.

When your trademark is officially registered, your brand is protected against trademark infringement. Trademark infringement is the unauthorized use of your trademark in a manner that causes deception or confusion about the source of specific goods or services. For instance, a ride-sharing service named Guber would be infringing on the Uber trademark.

If your trademark has been infringed upon, you’ll need to file a civil suit in federal court. The court considers the evidence including whether the defendant’s goods or services are sufficiently related to your trademark. 

The penalties for the offending parties if you win your case include an injunction to stop using the mark and monetary relief. While marketers may be intimidated by the legal process of registering for a trademark, the legal benefits far outweigh the fees.

Dana Stevens

Dana Stevens writes as a guest blogger for the Fordham Intellectual Property, Media & Entertainment Law Journal. Hailing from Northbrook, Illinois, she is the Marketing Manager for the American Marketing Association and a Journalism graduate at the University of Chicago. She loves writing and traveling to new places, and her favorite hobbies include hiking, swimming, and standup comedy.