Protecting Your Property
You have your company, your products, your service name, and your logo. Do these communicate a message about your brand to your customer? Should these be protected? What is a trademark and how is it different than a trade name? Can you have more than one trademark? How do I protect a trademark? Do I need a lawyer?
First, a trade name and a trademark are often confused with a business’ brand. Trademarks (or trade names) make up a subset of your overall business brand which includes images, processes, and intellectual property that engages your target market to evoke certain mental stimuli in your clientele’s mind. Powerful brands promote success and are often an organization’s most valuable asset.
A trademark is the term used for a distinctive, unique mark or design that sets your business apart from your competition. It may or may not be registered in the US Patent and Trademark Office. If registered you are provided with national protection and have taken the first steps toward acquiring foreign protection. The scope of what a trademark is has few boundaries. If something is capable of uniquely indicating your business, it can be considered a trademark. This might include a word, graphic, logo, symbol, name, slogan, shapes, sounds, smells, moving images, taste, and texture. Nike has registered the famous swoosh symbol, “IBM Blue” and “Kodak Gold” are colors that have been trademarked.
Our legal system has several protective measures for intellectual property: copyrights, trademarks and patents, which can occasionally overlap. For example, a graphic design of a logo will have a unique graphic quality, which may include your company’s name and slogan. While the name can be protected as a trade name and the logo (or combination of name and logo) can be protected as a trademark, the design elements can also be copyrighted.
In Colorado and in many other states, a “trade name” is the name your company conducts business under and uses for commercial purposes. As such, it is the name that you should register with the Secretary of State’s Office when you form your business entity – be it a DBA, an LLC, a C, or S Corp. Registering is easy and it precludes others from using your name in Colorado and it puts your name into several national databases used for research for federal trademark availability. Logo marks may also be registered online with the State of Colorado.
Instructions for Registering Your Trademark or Tradename in Colorado:
1. Go to www.sos.state.co.us.
2. Under the “Business & Licensing” column select “Business Document Filings”.
3. Click “File a form to create a NEW record” and register your company’s trade name or trademark.
After registering with your state, the next step is to place a ™ symbol next to any name, logo, symbol or image that you feel is indicative of your particular business. Using this symbol establishes minimal protection; only registration affords full, legal protection nationwide. Anyone who claims rights to a trademark may use the ™ (trademark) designation to alert the public to the fact that the name or logo is being used as a trademark. It is not necessary to have a registration, or even a pending application, to use these designations. The claim may or may not be considered valid in a court of law.
The Registered Trademark
The registration symbol ® may only be used when the mark is registered in the United States Patent and Trademark Office (USPTO). It is improper to use the registration symbol at any point before the registration is issued. The USPTO’s website is www.uspto.gov. It is very user-friendly; you can even browse through currently registered trademarks. However, registering a trademark requires a careful decision that could affect the fate of your intellectual property. If you have questions on the subject matter, contact an intellectual property lawyer before proceeding.
(Thank you to Laurie Rhoades of Replin and Rhoades for reviewing this article for the accuracy of its legal content.)
Brand well and prosper!
Andy Cleary