Josh Andrew with Gatehouse Law returned to Forge with a topic that is near and dear to all Entrepreneurs and Small Business owners – or at least it should be! What do you need to know about your business’s trademark? You have legally registered your business, isn’t that enough? Let’s dig a little deeper…
Step 1: Understanding Trademarks
What is a Trademark?
A trademark is a word, phrase or graphic symbol used to show the source of goods or products… or service!
Think of the most notable trademarks: Nike Swoosh, McDonald’s Golden Arches, UPS Brown Box (example of a service)
So, what is the difference between a Trademark and copyright? If you hired a designer to create your logo and they have a copyright for that image, do they own the trademark?
The short answer is no! The copyright protects the artwork or words. The trademark protects the business. So even if your logo has a copyright that you do not own, the trademark is yours!
Step 2: Protecting Trademarks
1. Your Trademark Cannot be “Merely Descriptive”
A merely descriptive mark is one that immediately conveys knowledge of a quality, feature, function or characteristic of an applicant’s goods or services. For example if a dry cleaners named their business “The Dry Cleaners,” they could not lay claim to that name being Trademarked. Anyone could use the same name because it is merely descriptive of the business that it represents.
2. Your Trademark Must have Distinction
It must be:
- Fanciful
- Arbitrary
- Suggestive
All three of these qualities can be legally protected.
3. Protecting Trademarks before you launch. This step is particularly important for those building a business, and not yet in operation. There are three ways to protect your business before you launch.
- Non-disclosure Act. Any time you enter into conversation with someone about your business, have them sign a non-disclosure act regarding the business knowledge shared during the meeting.
- File “Intent to Use.” This is a more costly option and only lasts six months. If you are not in business at the end of six months, but still want to protect the business, there must be another filing.
- Action. Do something with your mark. Setting up a website that collects email addresses is the simplest way to begin acting as a business before you are ready to launch.
Enforcing Trademarks
While ultimately your business needs to have the trademark legally protected, there are a few things that can protect the trademark while the business is growing.
1. Common Law Mark: Trademarks are protected in the immediate area that the business is operating. However this does not prevent your trademark in another part of the country from being used legally.
2. Business Name Registration
3. Notice – By using the trademark, your business trademark is protected (only in the area of operation)
4. Cease and Desist letters. It may seem like an extreme option. But it is the responsibility of the owner to protect the trademark immediately, otherwise the trademark is ineffective.
Thank you Gatehouse Law for teaching us all things Trademarks! We are thankful for firms like Gatehouse Law who serve entrepreneurs and Small Business owners teaching us the things we really need to be thinking about while building our business!
