How to Trademark Brand Names

Brand names may not be trademarked if they are too generic.

Trademarks protect words, symbols and phrases used to distinguish products from their competitors. They represent the accumulated "goodwill" of a product—the value of the product's reputation. A brand name is entitled to trademark rights if it is actually in use by the applicant and if it meets certain other requirements. Although it is not necessary to register your trademark for use in the United States, registration does confer certain legal advantages. You can forfeit your trademark if you stop using it with an intent not to resume use.

Instructions

1. Choose a brand name. In order to be trademarked, the name must be distinctive enough to distinguish the product from other similar products. It cannot be generic; the name "Cola," for example, cannot be trademarked. If your brand name includes the generic name of the product (Coca-Cola, for example), you may have to use it in commerce for quite some time before it will be eligible for trademark protection. This safeguard is intended to prevent public confusion between a trademark and a type of product.

2. Use the Trademark Electronic Search System (see Resources section), administered by the U.S. Patent and Trademark Office (USPTO), to determine if your brand name has already been trademarked by someone else. Remember that trademarks are considered "industry-specific," meaning that if your brand name is already in use in one industry it isn't necessarily ineligible to be trademarked for use in another industry.

3. Use your trademark in commerce. You are using it in commerce if you use it to advertise a product or affix it to the product itself, as long as the product is actually for sale.

4. Register your trademark with the USPTO (see Resources section). This will allow you to file an infringement lawsuit in federal court instead of being restricted to state courts. It will also allow your trademark to become "incontestable" after five years, making it difficult for an opponent to challenge it in court.

5. Continue using your trademark in commerce. If you fail to use it for three years, you will have the burden of proving that you have not abandoned your intent to use it in the future. If your trademark has been registered for at least five years, you will not have to continue using it in commerce as long as you renew your registration periodically.

Tips & Warnings

• International trademark protection is available under the laws of individual national jurisdictions.

• You can forfeit your trademark by licensing it to someone else without appropriate quality control or supervision, because your trademark will no longer be distinctively identified with your product.

References

• US Patent and Trademark Office: Trademark FAQ
• Harvard University: Overview of Trademark Law

Resources

• US Patent and Trademark Office: Home Page
• US Patent and Trademark Office: Trademark Electronic Search System (TESS)
• US Patent and Trademark Office: Trademark Registration