Trademark law is really an offshoot of “unfair competition” law, which protects businesses against unethical practices of other businesses. Trademark law protects against these unethical practices as they relate to branding tools that identify and distinguish the goods and services provided by businesses from one another in the mind of consumers. Businesses earn this protection because they often spend a lot of time and effort creating an identity around themselves and their commercial offerings.
This identity helps customers recognize their products and services. Basically, trademark law exists to protect this identity in the same way that patent, copyright and trade secrets law exists to protect other types of intellectual property. In fact, it seeks not so much to “protect” your commercial identity as to provide a bundle of rights enforceable in court against trespassers, or infringers, on this identity. Thus, trademark law functions more like a sword than a shield.
Why Should I Be Concerned About Trademark Law?
As an entrepreneur, you are probably eager to find ways to set yourself apart from your competition, whether existing or imagined. A distinctive name, a catchy slogan, a memorable logo…these all help to create a positive image associated with your business and you hope that they will ultimately result in more sales. But what if you invest time and money into creating an identity which conflicts with the legal and intellectual property rights held by others?
What if your efforts do not conflict with current marks, but also do not offer you much protection against future copycats, who will inevitably spring up when your business is successful? So, now you have two reasons to be concerned about trademark law, really. The upshot is that the changing landscape of business, especially the proliferation of the Internet, has dramatically increased the relevance of trademark law in recent years. By allowing businesses to expand cheaply and easily beyond local markets, the Internet has opened up a Pandora’s Box of potential trademark conflicts. Almost any business is now capable of selling directly to consumers nationally and internationally, and the scope of their concerns about trademark protection must expand accordingly.
OK…I’m Worried. What Should I Do About It?
First of all, you shouldn’t worry it’s not good for you! I have outlined a general approach to securing trademark protection that will work for many entrepreneurs who plan on selling a product or service nationally. Here is where I remind you these are guidelines and NOT legal advice:
Step One: How Do I Create A Good Trademark?
Keep in mind that once customers associate a trademark with a particular product, service or provider, would-be competitors frequently try to copy some or all aspects of the mark in the pursuit of profit. These copycats risk paying a stiff legal price for trading off the success of others, so a prudent strategy for you, the entrepreneur, maybe to purposely avoid any similarities to either your competitors or famous marks in the pursuit of a corporate identity. In other words, pick something that stands on its own.
Step Two: Trademark Search, How and Why?
A trademark search is a systematic hunt for existing marks that legally conflict with your proposed mark. A competent search identifies both direct conflicts and analytical conflicts. An analytical search scans for non-obvious conflicts like homonyms, synonyms, anagrams, phonetic equivalents, alternative spellings and other similarities. Entrepreneurs often possess a do-it-yourself ethos, but trying to do a good trademark search yourself is folly because of the steep learning curve involved.
Step Three: Trademark Registration, How and Why?
Since you will have to pay the fee regardless of whether the mark is accepted or rejected, you want to be assured of a reasonable chance of success when you file an application. Before you go about registering a trademark with the USPTO, you should understand a critical principle of US trademark law.
Namely, federal trademark law is governed by the principle of first use, rather than first registration. That is, you get certain legal rights simply by using a mark in commerce, and these rights trump later registration of the same mark by another party.