This post is part of the series, SmallBusiness.com Guide to Starting a Business: Information, resources and advice about starting a business. You can browse other posts in the series below.
When it comes to questions about patents and trademarks, simple answers would be great. Unfortunately, the question, “Does my company need to trademark or patent this?” has an answer that almost always starts with the phrase, “It depends …”
Patent and trademark advice can be confusing. And because it is confusing, the subject often attracts opportunists and scam artists who are hoping to profit from the small business owner’s confusion.
It’s best to gain knowledge of a few general practices and situations. Then, check out the online resources provided by federal and state government agencies that actually administer the processes and grant patents and trademarks.
This is an area where you need to be absolutely sure you are following all the right steps, so it is important for you to consult with an attorney you trust who is knowledgeable of Intellectual Property (IP) law. In other words, don’t merely depend on what you read on the internet—even what you read here.
A trademark is simply a word, phrase, symbol or design, or a combination of any of those, that identifies and distinguishes your goods or services from anyone else who may sell those same services. Sometimes, when you are providing a service rather than selling a product, the term “servicemark” is used. Your chances of obtaining a trademark increases the more specific your request is. For example, a request for a specific logo design that refers to specific business in a specific town or neighborhood that does not infringe on an existing trademark is easier to obtain than a request for a trademark on a simple word.
You don’t need a trademark to operate a business, however, owning the trademark for a name and logo works to your advantage in several ways, including these benefits cited by the U.S. Patent and Trademark Office (USPTO):
- Public notice of your claim of ownership of the mark
- A legal presumption of your ownership of the mark and your exclusive right to use the mark nationwide on or in connection with the goods/services listed in the registration
- The ability to bring an action concerning the mark in federal court
- The use of the U.S. registration as a basis to obtain registration in foreign countries
- The ability to record the U.S. registration with the U.S. Customs and Border Protection (CBP) Service to prevent importation of infringing foreign goods
- The right to use the federal registration symbol ®
- Listing in the USPTO’s online databases
Patents are intellectual property rights granted by the government to an inventor “to exclude others from making, using, offering for sale, or selling the invention throughout the United States or importing the invention into the United States” for a limited time in exchange for public disclosure of the invention when the patent is granted.
According to the USPTO, there are three types of patents:
- Utility patents may be granted to anyone who invents or discovers any new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereof.
- Design patents may be granted to anyone who invents a new, original and ornamental design for an article of manufacture.
- Plant patents may be granted to anyone who invents or discovers and asexually reproduces any distinct and new variety of plant.
Information from the U.S. Patent & Trademark Office
- Federal Trademark information and application process resources can be found at USPTO.gov.
- Patent information and application process-related tools and resources can be found at USPTO.gov/patents.
- State Trademark links can be found here.
Video—Basic Facts About Trademarks:
What Every Small Business Should Know Now, Not Later