What Is a Trademark?
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A trademark is a design, word, phrase, symbol—or a combination of these elements—that is unique to a brand’s good or service. Trademarks are a form of intellectual property that help companies stand apart from the crowd while helping consumers tell brands apart.
Below is an overview of the vast trademark world, from types of trademarks, to trademark strength, registration and more.
Types of Trademarks
There are two types of marks to choose from when federally registering a trademark with the United States Patent and Trademark Office: word marks and design marks. The mark type you choose will impact which elements of the mark receive legal protections.
- Word Mark
A word mark receives protection solely for the words identified in the trademark application. Stylized elements such as font, color, and spacing are not included in the protection. For example, in a Carhartt® word-mark registration, only the name would be protected.
- Design Mark
A design mark has stylized elements such as specific fonts, colors, sizing, or arrangements. Logos are common examples of design marks. For example, a Carhartt® design mark might include the name “Carhartt” in black, lowercase lettering in a specific font, with a stylized “C” appearing in mustard-yellow to the right of the brand name. Only this design, exactly as described and shown in the application, would be protected.
Can I register a trademark as both a word mark and design mark?
Yes. A trademark can be registered as both a word mark and design mark. In fact, many businesses choose to register their trademarks as both word and design marks, as this ensures more robust protections. To register a trademark as both a design and word mark, you need to submit two separate trademark applications.
Trademark strength refers to a trademark’s likelihood of withstanding infringement and legal challenges. It also takes into account how likely a trademark is to receive registration from the USPTO.
Numerous factors are at play when determining trademark strength, centering around a mark’s distinctiveness—is the mark a unique identifier for the goods/services it promotes? The USPTO looks favorably upon distinct marks, those that do not closely describe their products.
Trademark strength is measured via five categories that help determine a mark’s distinctiveness or lack thereof:
- Fanciful marks include made up words and receive some of the strongest trademark protections. Google® is an example of a fanciful trademark, as the word “google” is made up and meant nothing outside of brand association at the time the trademark was adopted.
- Arbitrary marks receive strong protection and use real words, but outside the context of the trademark, the words do not describe the good/service. Tide® is an arbitrary trademark as it relates to laundry detergent—consumers wouldn’t readily associate the words “tide” and “detergent” without the brand connection.
- Suggestive marks nod toward the goods/services they represent, but do not clearly describe them. Suggestive marks receive fairly strong trademark protection. In relation to bus transportation, Greyhound® is an example of a suggestive mark—the word theoretically ignites images of quickly traveling long distances.
- Descriptive marks are those that clearly point to the good/service the mark promotes. Descriptive marks are generally not able to be federally registered, unless the mark has acquired additional meaning and distinctiveness through its use in commerce. Holiday Inn® is an example of a descriptive trademark.
- Generic marks say exactly what goods/services are connected to the mark. They are unable to be registered by the USPTO. If a computer-selling brand called “Computer Sales” tried to trademark its name, it’d be unable to do so because of the generic nature of the phrase.
Want to find out where you trademark falls on the strength meter? Sign up for our Trademark Service to work with our attorneys and trademark experts.
Trademark registration is a form of trademark protection, existing at both the state and federal level. But registration isn’t the only way to protect your trademark.
Why you should register your trademark, or why you might be okay forgoing registration, depends on your brand’s goals and the geographic reach of your goods/services.
- Common Law Trademarks acquire rights after a mark has been consistently used in commerce within a specific region. No registration is required to earn common law trademark rights. While this type of protection can be difficult to uphold if infringement occurs, having a strong trademark—even if it’s unregistered—can go a long way if the mark becomes easily recognizable among consumers.
- State Trademark Registration is handled by individual states, with protection guaranteed only within the state of registration. Applying for state trademark registration is generally a cheaper and faster process than federal registration.
- Federal Trademark Registration is applied for through the USPTO. It provides the strongest form of trademark protection, with national geographic reach. Federal registration also allows trademark owners to sue for infringement in federal court.
Trademarks, Copyrights, and Patents
Trademarks, copyrights, and patents are all forms of intellectual property. They protect different types of IP and involve varying protection steps.
- Trademarks vs. Copyrights
Trademarks help protect brand identity, while copyrights protect individual artistic creations. The federal registration process for trademarks and copyrights differs and is handled by different government departments. (Copyright registration is handled by the U.S. Copyright Office.)
- Trademarks vs. Patents
Where trademarks focus on protecting brand identity and consumer clarity, patents help protect an inventor’s rights to their invention. Federal registration of both trademarks and patents is handled by the USPTO.
What Is a Trademark FAQs
How do I choose a trademark?
When choosing a trademark, it’s important to consider trademark strength. From a legal-protection perspective, the more fanciful the mark, the better. It’s also important to conduct a trademark search to ensure a similar mark isn’t already in use. It doesn’t matter how fanciful your mark is if a product like yours is already protected under a mark that resembles your own.
How do I conduct a trademark search?
There are several approaches to conducting a trademark search. The USPTO provides a search tool for their trademark database, the Trademark Electronic Search System (TESS). There’s also the USPTO’s Official Gazette to monitor—this is where pending trademarks are published. Additionally, consider searching business name registries for individual states, as these will likely reveal trademarks that TESS does not. Finally, you might conduct internet searches using your chosen trademark and other similar phrasings.
How long does trademark registration last?
Federally registered trademarks can be eternal if all the necessary paperwork is filed. The maintenance trail goes like this:
- Five years post registration, a Declaration of Use and/or Excusable Nonuse under section 8 must be filed.
- Between years nine and 10 after registration, the Declaration and an Application for Renewal under sections 8 and 9 must be filed.
- After that, renewals are due every 10 years, and there is no limit on the number of renewals that can be granted.
What is a trademark class?
Trademark class relates to the type of goods/services a mark is associated with. There are 45 classes, from natural agricultural products (class 31) to fancy goods (class 26). Yes, you read that right—“fancy goods” is an official U.S. government label. Trademarks can be associated with numerous classes of goods/services.
How much does a trademark cost?
The cost to register a trademark depends, in part, on the type of trademark application you file with the USPTO. If you use the TEAS Plus application, you’ll pay $250 per class. This is the cheapest option, and the option we most often use if you hire us for Trademark Service. The other application is TEAS Standard, which costs $350 per class. Aside from cost, one of the main differences between the TEAS Plus and TEAS Standard applications is how you’re able to describe your goods/services. TEAS Plus allows applicants to choose from preset descriptions; TEAS Standard allows applicants to describe their goods/services free-form.
What is the Lanham Act?
The Lanham Act governs federal trademark law in the U.S. Enacted in 1946, the Lanham Act (sometimes called the Trademark Act of 1946) sets the rules around trademark dilution, rights, infringement, and false advertising.