Copyrights, patents and trademarks, OH MY!
In this InvENting 101, we’re learning about trademarks…what they are, what permissions they provide and how to get one.
According to the USPTO, a trademark is a symbol, word, slogan, design, color or logo that identifies and distinguishes the source of the goods of one party from those of others. A service mark is a word, phrase, symbol and/or design that identifies and distinguishes the source of a service rather than goods. The term “trademark” is often used in a general sense to refer to both trademarks and service marks.
The green mermaid logo that appears on Starbucks cups and signage is protected by a trademark.
Trademarks can represent:
- The product or service itself (ex. iPhone)
- A feature or element of the product or service (ex. FaceTime)
- The manufacturer or provider of the product or service (ex. Apple)
A product or service can have more than one form of IP. Taking the Apple example above, a mobile phone may use technology (data encryption) and include features (a camera) that have been patented. The phone may be marketed under a brand name that has a registered trademark. The look and feel of the phone’s home screen design may be the subject of a copyright.
A trademark not only gives the trademark owner the exclusive right to use the mark, but also allows the owner to prevent others from using a similar mark that can be confusing for the general public. A trademark cannot, however, prevent another person or company from making or selling the same goods or service under a clearly different mark.
A trademark is NOT a patent and will NOT protect an idea.
HOW LONG DO TRADEMARKS LAST?
Trademarks do not expire after a set term of years. Trademark rights come from the actual “use.” Therefore, a trademark can last forever – so long as its use continues to be used in commerce to indicate the source of goods and services. A trademark registration can last forever – as long as all required documents are filed and fees are paid at regular intervals.
Each time a trademark is used, it is best practice to use a designation with it. If registered with the USPTO, use the ® symbol after the mark. If not yet registered, it is acceptable to use ™ for goods or SM for services, to indicate that the mark has been adopted as a “common law” trademark or service mark.
REGISTERING A TRADEMARK:
Trademarks can be registered online using the USPTO’s Trademark Electronic Application System (TEAS).
To register a trademark, you’ll need the following information:
- The applicant’s name
- A name and address for correspondence between the applicant and the USPTO
- A depiction or drawing of the mark
- A list of the goods and/or services that will be associated with the mark
- Filing fee(s)
Once a trademark is published, it appears in the Official Gazette for Trademarks (TMOG), the official journal of the USPTO, published weekly on Tuesdays. Each entry includes bibliographic information and a representative drawing for each patent granted or trademark published on that issue date.
To learn more about trademarks or if you’re interested in registering a trademark, we’d suggest reviewing all requirements and information via the USPTO. If you have questions about whether your ideas qualify for trademark protection or would like assistance in filing an application, we recommend contacting a trademark attorney.
WHAT IS A TRADEMARK LICENSE?
A trademark license is an agreement where the trademark owner (the “licensor”) permits someone else (the “licensee”) to use the licensor’s trademark in connection with specific products or services.
An example of trademark licensing would be a professional football team permitting clothing manufacturers to print team names and insignias on their merchandise. This can also be referred to as “brand licensing.” Learn more about brand licensing here.
From a licensor’s perspective, the quality control provisions of the trademark license are the most important. The licensor must ensure the licensee’s products/services meet a certain standard or else the value of the licensor’s trademark could be affected. There is usually a strict approval process prior to goods/marketing materials going public to ensure quality control.
DOES A TRADEMARK LICENSE HELP YOUR CHANCES OF GETTING A PATENT LICENSE FOR YOUR IDEA?
The answer for this is, unfortunately, it depends.
At Edison Nation, we evaluate ideas based on the proposed or secured patent functionality. We are looking at the idea. If you happen to have a trademark on your product concept, perhaps from previous sales, etc., that is information we’ll share with prospective licensing partners if the product reaches pitching, but it is not guaranteed that a partner would license a trademark as well.
Many prospective partners have their own look and feel and trademarked brands that a new concept would be absorbed under – this could include the color, design, name, etc.
Long story short, to give your idea its best chance, do your research and complete a strong submission outlining why your idea is unique and a fit for potential retailers.
We hope this article provided some additional insights!