Trademark is a complicated area of law, and we can't give you all the answers because lawyers would then hunt us down and kill us with pointy sticks. We can, however, provide you with the procedure for registering your very own federal trademark and explain some of the legal issues around doing so. The lawyers will allow us to do this, and they probably won't bother you, either, unless you infringe on one of their clients' trademarks. Then it's back to the pointy sticks.
By the way, we warn you ahead of time that the trademark search (step 2) is by far the worst part of registering a trademark. Once the search is over, it's pretty much clear sailing. Don't give up just because the search seems daunting.
1. LEARN WHAT A TRADEMARK IS
Before we burst into song about trademark law (and it's awfully tempting), you should know about the three different types of protection that exist whenever you want to protect an idea you came up with:
A Trademark…
Protects a word, phrase, symbol, design, or combination of these things. Basically, you get something trademarked to protect your product's name, logos, and such ilk. Examples of trademarked items are the names "Coke," "Coca-cola," "McDonald's," the McDonald's golden M logo, stuff like that. In a nutshell, you can only trademark a clever little word, catch phrase, or design, and use it to market your goods and services. Here's the technical legalese definition of a trademark:
The U.S. Patent and Trademark Office (USPTO) defines trademarks and service marks as follows:
"A TRADEMARK is either a word, phrase, symbol or design, or combination of words, phrases, symbols or designs, which identifies and distinguishes the source of the goods or services of one party from those of others. A service mark is the same as a trademark except that it identifies and distinguishes the source of a service rather than a product." Furthermore, "a mark for goods appears on the product or on its packaging, while a service mark appears in advertising for the services."
A Patent…
Protects the physical characteristics of a new invention, or a new procedure. We won't get into the gory details. Not yet, anyway. SoYouWanna patent something is still in production...
A Copyright…
Protects an original expression (artistic or otherwise). Music, art, books, and website articles all get copyrighted.
But wait, couldn't a lot of these things overlap? When does a phrase become long enough so that it no longer needs a trademark, but a copyright? Well… it can get mushy, but do your best. If your phrase or logo exists as a means for you to sell a product, then you're probably looking for a trademark.
There are two systems of trademark law: common law and federal. In order to get common law trademark protection you have to use the trademark only within your state. This is for purely local business (you open a Mom & Pop store in your backyard). However, unless your business will definitely be limited to one state and you don't plan to use the Internet, it is best to register your trademark for federal protection. Even if you don't think that you're ever going to expand out of state, you should still go for federal protection, because if you're ever going to purchase from or sell to out-of-state, that qualifies as interstate commerce. We'll jump into that barrel of monkeys later on in step 3. So go for the federal trademark. That is what this SYW explains how to do.
Incidentally, when you use a trademark before it has been registered, you should always put a TM (for a trademark) or a SM (for a service mark) in small letters next to the trademark. You may not use the R in a circle design (which is reserved for federally registered trademarks) next to your trademark until after it has been registered, by which we mean after your application has been received, processed, and accepted, not just after you fill out the form.
Wait, wait - what happens if you use the phrase that you're trying to get trademarked, but then find out that someone else is using it? Well, it depends. If you began using the phrase first, even before you went through the legal processes, you have dibs over the other person. Proving who used the phrase first can be difficult and costs lotsa money in court, so don't bother waiting. Our point: once when you come up with your golden idea, g'head and apply for a trademark.
