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Trademarking a name is important to protect its value. Trademarks grant exclusive use of a word, phrase or image in connection with the sale of goods or services. Specific requirements must be met, and trademarks are reserved for names used in trade. Trademark law focuses on use, not content. Trademarks established by use have only local weight, while national registration allows for exclusive use throughout a country. National registration requirements vary by country, and a trademark attorney can provide guidance.
Branding a name is an important way to protect the energy and time you put into establishing the name’s value. Trademarks are intellectual property rights that grant one person or company exclusive use of a particular word, phrase or image in connection with the sale of goods or services. Depending on the jurisdiction, some trademarks are assumed to bind with use, while others must be applied for and awarded by a national office. Even if a trademark automatically attaches, national registration is still usually the best way to trademark a name. Registration carries with it a presumption of first ownership and the ability to more effectively enforce exclusive use.
Specific requirements must be met in order for a name to be trademarked, regardless of how the trademark is obtained. In most countries, including the United States, Canada and all members of the European Union, trademarks are reserved only for names, phrases and images used ‘in the trade’. Use in trade means that the mark is to be used in conjunction with the sale of goods or services. If a name is not used in trade, it generally cannot be a trademark.
It’s important to keep in mind that trademark law focuses on use, not specific content. There are no fixed rules about what types of names are eligible for protection. An eligible brand name can be a trade name or a personal name, as long as it is connected to a definable market. When you trademark a name, you do not acquire exclusive rights to use that name in all circumstances. You only get the right to use that name in relation to the business it is linked to.
In the United States, trademark rights generally automatically attach to a name used in an isolated market. As such, the easiest way to register a name, at least in the US, is to be the first to use that name in a community to sell something specific. An owner of a US trademark established by usage may add the trademark symbol, &trad;, to the trademark name. The ® symbol, however, is reserved for federally registered trademarks.
Marks established by use have only local weight. A use-based trademark may prohibit someone else from using your trademarked name to sell something similar in your community, but it won’t prevent someone from using your name elsewhere—nationwide, in another state, or in another country. If you trademark a name for use only, it can be difficult to enforce your trademark. If you have invested a lot of resources in developing your name as a distinctive trademark, particularly if you intend to use that name more broadly than in your community of origin, you should pursue national registration.
When you register a name nationally, you are essentially registering the use of that name with a country’s trademark office and applying for exclusive use rights throughout that country. In the United States, national trademarks are granted by the Patent and Trademark Office. Similar offices exist in almost every country in the world.
The specific requirements for obtaining national registration vary by country, but usually an applicant must demonstrate that his use of the name is unique, original and does not conflict with other names already registered. National registration allows a trademark owner to use the trademark name in a broad market and to prevent others from using that name for a similar purpose. The nuances of national registration can be complicated. Individuals can apply for national registration independently, but many people choose to register a name with the help of a trademark attorney who understands the nuances of the local registration system and who can advise the owner on the strength of his trademarks and on the probability of success.
