Trademark is one of three legal terms used to describe “intellectual property,” the others being patent and copyright. A trademark, denoted by the "TM" symbol (or ® if the trademark is a registered trademark), is a word, phrase, symbol, design, combination of letters or numbers, or other device that identifies and distinguishes products and services in the marketplace. A service mark, denoted by the "SM" symbol, offers virtually the same protection, but is used, instead, to identify and distinguish services, rather than products. When the term “trademark” or “mark” is used, it is understood to include “service mark” as well. Trademarks are usually synonymous with the brand name or design that is applied to a business or its products or used in connection with services.
To determine whether you're legally permitted to use the name you've chosen for your company, products and/or services, conduct a trademark search.
If a business is incorporated, is its name protected by trademark?
No. When you register a corporate or limited liability company (LLC) name with a state agency, there is no guarantee that the name has not already been taken by another business as a trademark. It may only mean that another company hasn't registered the business name in your state. Undertaking a trademark search before naming your company will help to minimize this risk.
Trademarks can be obtained through common law. Common law trademarks originate immediately upon using a trademark symbol (™) in connection with the sale of goods or services. Protection provided under common law is limited, however, and many companies will benefit from registering their marks with the state or federal government, for example registering for a federal trademark with the US Patent and Trademark Office (USPTO). Trademarks that have the ® have been registered with the USPTO.
Can I hire a professional firm to conduct a trademark search?
Yes. Many people prefer to pay a professional search firm to complete a comprehensive trademark search. This makes sense if you can afford investing hundreds of dollars or more for a thorough professional search. Our recommended resource is CT Corsearch.
You can also use a trademark attorney who can also provide legal opinions as to whether your proposed mark is legally safe. Obtaining a legal opinion provides important protection if someone later sues you for using the mark.