Protecting your business ideas, names and symbols

Editor’s note: Michelle Stockman works with Little Rock-based Arkansas Capital Corp. to promote entrepreneurship development around the state. Stockman earned a bachelor’s degree from Loyola University-Chicago in communications and fine arts, and earned a master’s in entrepreneurship from Western Carolina University. Her thoughts on business success appear each week on The City Wire.

Intellectual property is a seldom talked about topic for the majority of business owners, yet it is a very good tool for most businesses to protect themselves in specific areas from others. The “TM” and “SM” and ® symbols all related to trademark law and allow the owners of those marks certain rights on the use of those marks.

According to Nolo’s Patent, Copyright & Trademark: An Intellectual Property Desk Reference, “a trademark is a distinctive word, phrase, logo, graphic symbol or other device that is used to identify the source of a product or service and to distinguish it from competitors.” A trademark can include a brand name, logo, shapes, letters, numbers, sounds, smells, colors, titles, character names or other representation that promotes a product. Meanwhile a service mark is the same as a trademark, but the property represented is related to a service not a product.

Trademarks are typically sought after by a business to protect their products or services in the event another business or entity decides to utilize similar representation for similar products. Whomever is the first to obtain the trademark will have ownership of representation thus forcing others to stop utilizing their marks.

In obtaining a trademark, businesses are tasked with obtaining inherently distinctive representations either through a unique logo or symbol, words created for the mark (i.e. Kleenex) or words that connote unique qualities about the product. Further, once a trademark is obtained, it is up to the owner of that mark to police and enforce the use of said mark. The government is not going to make sure your competitor is not using your intellectual property. However, if you bring an offender to court, your trademark status will stop copycats.

Several factors can prevent a business from obtaining a trademark. The first is not using your trademark. It is possible for owners to abandon their trademark rights by not engaging the mark within commerce. A generic term, logo, shape, sound, color is not considered a legitimate trademark. A mark that is similar to a mark already trademarked is not considered eligible nor are marks that can be considered to have multiple meanings (such as a location).

To obtain a trademark or servicemark, a business needs to obtain the online filing form from the U.S. Patent and Trademark Office (USPTO) and submit with the appropriate filing fee. Additionally, the business needs to ensure the mark has been put into use “in Commerce that Congress may regulate.”
www.uspto.gov

While the idea of intellectual property may be intimidating for some business owners, it is a great tool to help protect creative property utilized for the business in order to generate business. The process is cumbersome as compared to obtaining a patent; however the business owner does need to be prepared to answer any questions about uniqueness and use of the mark.

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Stockman can be reached at [email protected]