What can your Small Business Trademark?

Any entity can apply for federal trademark protection through the USPTO for their brand identifiers that are being used in commerce or that will be used in commerce in the future. That is a loaded sentence so let’s break it down. First, any entity means any registered LLC or corporation regardless of size, number of members, or time in operation. It means your small business. You do not need a marketing director or a legal department. You simply need a desire to protect your most valuable asset – your brand.

What can be registered? Brand Identifiers

Second, it is your business’ brand identifiers that may be eligible for trademark protection. Your brand identifiers are the concepts you use to promote your products and services. These include but are not limited to your business or product name, a logo, a slogan or even sounds and smells. The strength of a brand and the amount of legal protection afforded by the USPTO depends on how unique and original those concepts are. In the trademark world, the strength of a brand and the likelihood of successful trademark registration with the USPTO can be analyzed by using the below Spectrum of Marks:

• Coined Marks – These are completely new and made-up terms such as Exxon® for gas or Kodak® for cameras.
• Arbitrary Marks – These are real words, but the words are not related to the goods or services that they promote, such as Apple® for computers.
• Suggestive Marks – These are words that relate to the goods or services but that are not descriptive of them, such as Coppertone® for sun tanning products.
• Descriptive Marks – These are words that describe a good or a service. For example, “Sports Illustrated” is descriptive of a sports magazine. These terms are typically afforded less protection by the USPTO, if any.
• Generic Marks – These are common terms used as the general name for a product or service and they are afforded no protection for the USPTO. An example of a generic term would be “laptop” for a computer.

Use in Commerce

Lastly, brand identifiers will have to be used in commerce prior to a final registration being issued. Applications may be filed on an “intent to use” basis, meaning they can be filed prior to the brand identifier actually being used in commerce, but proof of use in commerce will need to be submitted during the registration process. Proof of use in commerce is submitted to the USPTO in the form of a specimen. That specimen must adequately show the brand identifier being used in association with the sale of the products or services it promotes. An online store with the brand identifier prominently displayed or a product price tag displaying the brand identifier are good examples of potential specimens that can show use in commerce.

In sum, brand identifiers in all forms, shapes and sizes may be eligible for legal protection through registration with the USPTO. Please feel free to Contact Alex to discuss the post or to get started on protecting your brand identifiers with the USPTO.