Considerations When Developing a Trademark

When creating a trademark for your brand or business, there are both design and legal aspects that you need to consider. A trademark, simply put, is any word, symbol, design, or phrase that identifies your brand, and is a type of intellectual property. Ideally, you should develop a trademark that:

  • Has phrasing, colors, and graphics that accurately express your brand- Has phrasing, colors, and graphics that accurately express your brand
  • Is easily identifiable
  • Distinguishes your brand from competitors

Your trademark should evoke positive associations with clients and consumers, as well as accurately portray the message you want to put out into the market. However, with well-designed, thoughtful trademarks comes the potential risk of being infringed upon. Brands with great trademarks are often vulnerable to being stolen from by competitors that want to mimic the positive reputation associated with that trademark. Here, we’ll address some of the most important factors to consider when developing your trademark, as well as how to protect yourself from potential infringement.

Creating a Low-Risk Trademark

As you’re developing your own trademark, it can be helpful to search for existing trademarks within your industry or business type. This will give you an idea of similar trademarks that already exist that can prevent the use and registration of your own. An outsourced attorney can guide this process for you and provide their opinion on the likelihood and availability for registering your trademark—though it ultimately is up to the decision of the Trademark Office. Generally, your trademark should not:

  • Be too visually or phonetically similar to other trademarks
  • Coincide with legal precedents that could prevent your trademark from becoming registered
  • Be too similar to other brands known for filing oppositions

It’s best to avoid being entirely descriptive of your brand, but rather create a trademark that is unique in its associated meaning within your industry. Trademarks are assigned different levels of protection based on their strength. Generic or overly descriptive trademarks are given the least level of protection—for example, BAKED BREAD CO. for a sliced bread company. On the other hand, trademarks that are apparently arbitrary, seemingly unassociated with the product or service, or especially distinct are given the strongest level of protection. Think, Apple for computers and iPhones, Shell gas stations, or Coach for luxury accessories. None of these trademarks inherently have to do with the goods that the company creates.

Developing a Long-Term Trademark

In addition to creating a trademark that will have strong legal protections and generate positive brand recognition, it’s important to consider whether or not your trademark will support the long-term goals of your company. If your trademark will be used to market your products and services, it should be broad enough to encompass any potential changes you make in the future. For example, if your current business is to screen print tote bags, you may have a trademark that only reflects tote bags. However, as the business grows, you may want to expand into screen printing t-shirts and other articles of clothing. The tote bag trademark won’t serve future endeavors. Taking your time and choosing a trademark that can grow with your business is highly advisable.

Protecting Your Trademark

Once you’ve settled on the right trademark for your brand, the next step is to register it with the United States Patent and Trademark Office (USTPO). This process can take between nine and twelve months if no objections are raised or oppositions filed. When approved, it’s important to protect your trademark from competitors. The most effective trademark strategy is one that ensures your business is the only benefactor of the positive reputation your trademark represents. To prevent trademark infringement, you should provide notice of your trademark rights every time you use it. This can be done by using an ® once your trademark is registered, or a “TM” if you’re still in the process.

Though the USPTO registers your trademark, they aren’t responsible for enforcing the exclusivity of your trademark’s usage. Be sure to assert your rights as the trademark holder. If you find instances of a competitor using a trademark too similar to your own, a cease-and-desist letter can dissuade the infringer from continuing to use the trademark. An outsourced attorney can help you take further legal action when necessary.

The trademarking process can be difficult and full of obstacles. The best course of action is to contract an outsourced attorney that can advise you throughout the process.


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