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Trademarks and Their Renewed Importance in a COVID World

 

The COVID-19 pandemic has fundamentally changed the way people across the world exist. This change has been as true for individuals as for large and small businesses. Specifically, businesses have had to transform the structure of their work to fit the constantly changing COVID standards. Organizations that previously did not operate a website or yelp page, began to conduct business over the internet. Businesses that had a preexisting online market were pushed to make their online market their primary market. The overwhelming transition of businesses onto online platforms has propelled a renewed importance of obtaining trademarks and intellectual property protection for one’s business.       

So, what is a trademark?

 A trademark is defined as “any word, phrase, symbol, design, or a combination of these things that identifies your goods or services,” by the United States Patent and Trademark Office, the regulating agency.1 Essentially, a trademark helps a business protect qualities that people use to identify the business, including brand names and logos. Think about the shape of McDonald’s golden arches or the Coca Cola bottle. Each is immediately recognizable and associated with its respective brands regardless of whether it is labeled as such. Without trademarks, anyone could use the golden arches or the bottle shape and capitalize on the brand names, thereby diminishing the recognition value they hold.

 How do I apply for a trademark?

 Obtaining a trademark can be a straightforward and simple process as much as it can be a difficult one, depending on the desired trademark. First, you must choose what type of trademark you wish to acquire, a standard character mark, a stylized mark, or a sound mark.2 A standard character mark will protect your brand name anytime it is used in writing. A stylized mark will protect your brand name, specifically with its colors, font, and style when used in writing. Lastly, a sound mark will protect your brand’s sound or audio logo. Be aware, the mark is only protected across the specific class of goods or services you apply for, and not across the board.

 Next, you must cross check the Trademark ID Manual3 to search for similar trademarks. If your desired trademark has already been trademarked by someone else, you may need to alter your mark to be unique. This alteration may include adding a word to the name, changing the color of the logo, or scrapping it altogether. This can be a frustrating process, but it is better to find out early on that you may need to change your mark rather than running into legal issues later.

 Finally, you need to choose a filing basis: use in commerce, intent-to-use, foreign registration, or foreign application basis.4 A use in commerce basis is most common as it means you are currently using your mark in commerce to sell goods and/or services.5 An intent-to-use basis signifies you plan to use the mark in commerce but are not currently doing so.6 A foreign registration basis implies you already own a foreign registration of the same mark from your country of origin.7 Lastly, a foreign application basis implies you own a foreign application for the same mark.8

 Once you have made all the mentioned distinctions, you can put together an application for your trademark. Although you do not need an attorney to file a trademark application, the United States Patent and Trademark Office strongly encourages you to get an attorney to guide you and review your application.9 On the other hand, if you live in a foreign country, you do need to be represented by a United States licensed attorney. There are many options for pro bono attorneys, including law school clinical programs.10  

 Why is obtaining a trademark especially important now?

 As businesses move online, so does the possibility of confusing one business with another. Local customers may recognize your business by its brick-and-mortar location or by your friendly face at the counter. Without these familiar factors, your customers may mistake “Detroit Coffee” for “Detroit Coffee and Tea.” A trademark allows you to stake claim on your name and prevent another business from using the same or too similar of a name. Additionally, the trademark process will help you discover if someone is already using your name and prepare you to protect yourself from legal repercussions. Online business platforms are also more widely accessible. A trademark can prevent someone from taking your business and branding it as their own. This protects the years of effort most businesses spend on branding and building their reputations. Trademarks are now more important than ever. Protect your business as we continue to adapt to pandemic-friendly ways of business.

 

 By Zeba Khetani

 

 

 

1.     What is a Trademark?, USPTO (Mar. 31, 2021, 12:00 PM), https://www.uspto.gov/trademarks/basics/what-trademark.

2.     Get Ready to Apply, USPTO (Sept. 22, 2021, 9:01 AM), https://www.uspto.gov/trademarks/basics/trademark-process#step2.

3.     Trademark ID Manual, USPTO, https://idm-tmng.uspto.gov/id-master-list-public.html (last visited Nov. 7, 2021).

4.     Basis, USPTO (Mar. 3, 2021, 6:14 PM), https://www.uspto.gov/trademarks/apply/basis.

5.     Id.

6.     Id.

7.     Id.

8.     Id.

9.     Get Ready to Apply, supra note 2.

10.  Law School Clinic Certification Program, USPTO (Oct. 20, 2021, 4:06 PM), https://www.uspto.gov/learning-and-resources/ip-policy/public-information-about-practitioners/law-school-clinic-1.

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