Trademark Frequently Asked Questions

Do you need a copyright, or a trademark?

Trademarks are words or images used to represent a brand, or a “source of goods.”  When you file a trademark, you must declare to the USPTO what kinds of goods or services you will be selling using that word or image.

If you have created an artistic work, whether that’s a written work, a video or film, or an image, and you want to protect the work itself, that’s probably going to require a copyright. You do not need to be selling anything in particular to file for copyright.

Special consideration for apparel: if you have created an image which you are applying to shirts made by someone else (for example, you’re putting a design you created on a Hanes or American Apparel shirt), this is probably best protected by a copyright. To get a trademark on apparel at the USPTO, it is generally required that the mark appear on the internal tag of the garment, indicating that you were involved in the manufacture of that garment.

What makes a good trademark?

Trademarks are strongest when they are words that are made up (like Kodak, or Windex) or have no meaning in the industry that they are used in (like Apple, for computers).

Words that describe exactly or pretty closely what they’re trying to protect are unlikely to be successful. Exceptions are when a business has been around for a long time and is well recognized (ex. Bank of America), but for new marks, it’s best to be as creative as you can.

How can I tell if my trademark is available?

First, do a regular internet search. Keep in mind that USPTO examiners will reject an application if there is a “likelihood of confusion” with another mark, so they’re not looking for exact matches only— words that sound the same but are spelled differently still have a potential for confusion.

If there is another business out there using the mark you want, even if they have not applied for trademark registration, we strongly recommend you consider re-branding. Keep an open mind and keep trying until you find something unique.

Secondly, check https://tmsearch.uspto.gov/ to find registrations and applications at the USPTO. Again, try different spellings. You want to avoid conflicts with “Live” marks that are in a similar industry to yours— this search will let you filter out “Dead” marks.

What if I’m not using the mark yet?

You can file a trademark application for a mark you’re already using, or an “Intent to Use” application for one you’re not using yet. This is a good option you want to see whether it registers before you invest in using the mark in commerce.

If you file “Intent to Use,” and the application is allowed, you must follow up with a Statement of Use later proving that the mark is being used.

How much does it cost?

For pricing information, if you have not received an intake form yet, just get in touch with our office with a brief description of the services you need. The pricing information is on that intake form.

Every case is different. We’ll review that intake form, determine if a paid consultation is needed, and get back to you with up-front pricing before we do any filing.

I have more questions not covered here. What should I do?

First, check out the Trademark Basics series offered by the USPTO. If you have further questions specific to your situation, let us know you’d like to set up an attorney consult. Our consults are generally a half-hour, conducted by phone.