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Patents and Trademarks

  • What are trademarks and why do they exist?
    • Trademarks are any word, phrase, symbol and more that identify your goods and/or services.
    • Trademarks help customers recognize your "brand" as distinct from your competitors, and help guard against counterfeiting and fraud.
    • Trademarks only protect for how the mark is used in commerce, so it does not protect someone using the word or phrase in general (think of brands with common words like Apple or Windows - they don't own the words, but do have protection for their specific business use for computers/electronics).
    • Like patents, trademarks can be owned by individuals or companies.
    • Once a trademark is used in business, there are limited protections for the local area of its use, but getting it registered, provides the national coverage many individuals or companies need.
  • What are the different types of trademarks and how long can they last?
    • Trademarks have lots of different types, although the most common are words and/or symbols (think about how companies like Google protect their brand)
    • Also in this category of intellectual property are: trade dress (Hershey's Kisses shape), 3D trademarks, motion or movement trademarks, scent trademarks, sound trademarks and more (on sound - think of little jingles companies use, see examples from USPTO).
    • Trademarks can last indefinitely!  As long as the individual or company keeps paying for renewal, it can even keep the trademark over 100 years (Coca-Cola dates back to the 1800's!)
  • What can be trademarked?  Almost any form of branding can be trademarked - the key is that it should be "strong", something that can immediately show that it is a good or service:
    • Distinctiveness is key for strong marks - going back to the computer companies mentioned above, Apple and Windows would be less "strong" if they were describing a food company or home repair company respectively.
    • The "strongest" trademarks are generally made-up words like Exxon or Kroger followed by arbitrary trademarks like Apple or Windows (word does not match service or good), and then suggestive trademarks like SkySafari, a company that creates astronomy software.
    • "Weaker" trademarks are those that are more generic or only descriptive, although with long use, they certainly can still be trademarked - think of Whole Foods as an example.
  • What cannot be trademarked?
    • Too generic of a mark choice, it is unlikely to become a trademark, especially if not used widely - descriptive can sometimes be trademarked.  Generic choices are everyday words or symbols like "Bicycle" for a bicycle company.
    • Marks not used in commerce - they must be used in business.
    • Marks not used across state borders - in order to register, it must be used nationally.

 

Be sure to check out USPTO's Trademark Basics pages too!

As trademarks are used nationally, searching USPTO's Trademark Search, is the best option (there is also a Global Brand Database).  Anyone looking to register a trademark will need to search to make sure it is not too similar to an already registered trademark since this can cause a common rejection - "likelihood of confusion."

Trademark searching can be more difficult for keywords as it is more about searching for names and their phonetic equivalents, but it still employs the same principles in designing a structured search.  Consider these options when designing your search:

  • Field tags: use these to specify a field to search such as ON: for owner name or GS: for goods/services category
  • Boolean logic: AND, OR, NOT, ADJ (adjacent) and SAME (words in same paragraph)
  • Truncation: Asterisk* (0 to unlimited characters) depending on search field, or a question mark ? (exactly one character)
  • Pattern matching: C could be C, K, Q, X (crack, crak, craq, crax) or GH vs TE (light vs lite) and letters or vowel substitutions and so on (lots of options!)...
  • Design elements in the mark via the DSCM (Design Search Code Manual): 03.15.05 for example as 03 is the category for animals, 15 is the division for birds, then 05 is the section for turkeys (although birds for eating have their own category!) - just make sure to take the dots/periods out of the 6 numbers when searching

Here are some guiding principles from USPTO for conducting a "thorough search" - search:

  • All forms of all distinctive elements of the mark
  • Each distinctive part alone
  • All phonetic, english and legal word equivalents
  • Acronyms and what they represent
  • Component parts of individual terms (when needed)
  • For retrieving two or more terms that would be found whether together or separately
  • Pictorial equivalents for distinctive terms and the opposite

See the example tab for how to do some searching.  With how complex these can get, the free training on searching from USPTO as part of their Trademark Basics Bootcamp is highly recommended!

NASA concept for a flying car with fold-up wings.

You're finally ready to sell your new flying car that your company has designed here in the USA.  You have a snazzy logo/stylized words that you want to be protected for your flying car (GEMINI CAR, gemini car in upper case with the a replaced by a star, named since it's a two-seater).  How would you get started?

(image: NASA.gov)

 

  • Consider pattern matching for phonetic equivalents:
    • Gemini: g (j), e (i, ie, ei, ae), i (e, ie, ei, ee, y) - the y might be relevant depending on the pronunciation of the final i...
    • Car: c (c, k, q, x)
  • Include Boolean logic and truncation:
    • *gemini* AND *car*
  • DCSM for the star as a design element:
    • 27.03.01 for geometric figures that form letters or numerals
    • 01.01.03 for a single star with five points
    • Not 29.01.07 though that is for smaller design elements functioning as punctuation or parts of a letter - the star in this design is functioning as a whole letter
  • Pick appropriate field tags for your search
    • LD: live/dead status
    • DC: design code


Combining all of these together, you might search like this in Trademark Search using regular expressions:

  • CM:/.*[gj][ie]m[ie]n[iey].*/ AND CM:/.*[ckqx].r.*/ AND LD:true
    • Searches any with spelling variations of gemini and car that are live marks
  • CM:/.*[gj][ie]m[ie]n[iey].*/ AND (DC:270301 OR DC:010103)
    • Just searches spelling variations of gemini plus the design codes identified above, most are dead marks, but there is a "Gemini Motor Transport" that might be worth looking into


You might also consider marks with the word car as a symbol instead of spelled out with a star or the constellation representation of Gemini...  Lots of options!  See tmsearch.uspto.gov/help for information on regular expressions and lots of search examples.

There are 6 main categories as you go from your brand idea through maintaining your trademark (see details on USPTO's Trademark Process Overview):

  1. Trademark right kind of IP protection?
  2. Get ready to apply (focus in this guide!)
    • Select your mark & format
    • Identify goods and/or services
    • Search for similar marks
    • Determine your filing "basis" (how you use or intend to use your mark)
    • Find a trademark attorney (optional for US folks, required for those who live abroad)
  3. File application
  4. Work with assigned USPTO examining attorney
  5. Receive approval & USPTO publishes your mark
  6. Maintain your registration via fees based on type and entity

**Note: USPTO has developed a new trademark search system which is live as of November 30, 2023.  The link to TESS (old system) will automatically route users to the new system and there are some videos available to help you get started.