- If I operate a business, do I automatically have a trademark?
- What is the little circled “R” on certain brand names?
- What does it mean if a trademark is registered?
Too often, small business owners misunderstand what intellectual property rights they have and what rights they leave on the table when operating their business.
The name of your company – whether it is your own name or a brand you have created – and any symbol, design, slogan or phrase you may use must distinguish you from all of your competitors. This is how consumers will recognize you and this is why consumers will have certain expectations about your company based on their past experiences. The branding on your goods or services is your trademark and tells the world that these goods or services are provided by your company.
And for those reasons, it is important to understand how trademarks function to protect your company. Operating a business and using your branding grants certain common-law rights or abilities. Generally, you may stop other businesses from operating in your area if they are using the same or a similar brand, but this is neither automatic nor is it guaranteed by a court ruling. Where consumers are demonstrably confused by two similar marks, a court may grant an injunction in favor of the business that was first using the mark but sometimes, proving which company was first can itself be expensive and complicated. A dispute between goods, services or brands might involve the question of which categories apply, a threshold issue which could itself be very costly and time consuming. These basic enforcement rights usually do not extend outside the geographic area of the business’ operation and so, it is generally advisable to register one’s trademark with the federal government for national protection.
Federal registration greatly enhances the strength of a trademark. Successfully registering a trademark grants a presumption of ownership of a brand. This is a very powerful position to hold in court and, in fact, often strong enough to stop infringement before disputes end up in court. Also, registration automatically prevents new businesses from registering if their brand is similar to yours in a way that may cause confusion among consumers. Registered trademarks may use the small circled “R” in their brand names to further distinguish themselves.
Even if you have already attached a unique mark to your goods, services, or company brand itself, you should take steps to assure yourself that you are not already infringing on some other trademark (or to determine if someone is infringing on yours). Usually, trademark diligence is best left to attorneys because, after enough searching, something always matches in some way.
If you are looking for additional details on this topic or if you require advice about your situation, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at firstname.lastname@example.org. Please ask us about our video conferencing or telephone consultations if you are unable to come to our office.
Written by Christopher Balioni, Esq. of Hanlon Niemann & Wright