You have thought of a great idea and found a partner to build the business with. You have spent countless hours choosing a name and hired a designer to create a logo for your business. Now, how do you make sure other businesses don’t piggyback on your hard work and use a name or logo that is substantially similar to yours? We’ve researched both the Canadian Intellectual Property Office and the United States Patent and Trademark Office to make sure you’re covered!
But what is a trademark?
According to the Canadian Intellectual Property Office (CIPO), a trademark is “a combination of letters, words, sounds or designs that distinguishes one company’s goods or services from those of others in the marketplace.” Outside of this textbook definition, it is a tool that helps protect your business’s reputation and brand equity. A brand’s name and logo represent all of the company’s hard work, ethical behaviour and marketing dollars. Customers often use a specific company’s product or service as a result of the familiarity of the brand. It is therefore crucial that you protect your brand’s equity through the trademarking process.
Now that I understand the value of trademarking, what can be trademarked?
According to the United States Patent and Trademark Office (USPTO), trademarks may include “any word, name, symbol, device, or any combination, used or intended to be used to identify and distinguish the goods/services of one seller or provider from those of others, and to indicate the source of the goods/services.” This may include distinguishing features and elements of a brand’s identity, such as its logo, colour, font, slogan, website URL, and many others.
Can any identifying feature be trademarked?
Both CIPO and USPTO frequently reject trademark applications for a variety of reasons. Some of these reasons include but are not limited to: marks that can be confused with a registered or filed trademark, marks that are deemed to be deceptive, marks that represent specific geographical locations, marks that are overly generic (such as ‘Hockey Stick’), or marks that are solely an individual’s proper name (for example, you cannot trademark ‘John McDonald’ but you can trademark ‘John McDonald’s Computer Repair’).
When should I begin the trademarking process?
Yesterday! As soon as a trademark is put into commercial use (i.e., you advertise your brand using your logo), it will kickstart the process of trademarking your company’s logo. These automatic rights are difficult to enforce so it’s crucial to trademark your logo through your country’s intellectual property office (like USPTO for the United States and CIPO for Canada). Once a trademark is registered, it provides many extra protections to the business owner, including: additional legislative protections, the ability for Customs Agents to confiscate counterfeit infringing imported goods, national protection over the trademark (in the country that the mark is registered with), and the ability to bring a lawsuit against others that infringe on the mark.
Can my logo be trademarked?
It is important to know that not all logos can be trademarked. The logo being submitted to CIPO or USPTO cannot be overly similar to other trademarks for related products/services, misleading to consumers, or determined to be offensive. The trademarking agencies are likely to reject marks that sound similar, have similar meanings, or look alike—it cannot be likely to result in confusion among users and consumers.
So what’s next?
Now that you’ve created your brand’s logo (like through Logojoy!) it is crucial that you take the necessary steps to properly protect your company’s brand. Read more about trademarking your company’s logo on the USPTO and CIPO websites, and read some blogs over at Clausehound for more information!
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About the authors: Clausehound.com is a legal tool geared towards entrepreneurs, early-stage businesses and small businesses alike to help draft legal documents to make businesses more productive. Clausehound’s $10 CAD per month DIY Legal Library hosts tens of thousands of legal clauses, contracts, articles, and lawyer commentary. You won’t find better explained commercial agreements on the web!