In the inventing world, a lot of attention is paid to patenting. Often overlooked is the power of a trademark--a wonderful tool that can provide an incredible value when it comes to protecting your product or brand name.
But what's the difference between a patent and a trademark? While a patent protects utilitarian inventions--the design and function of the actual thing you create--a trademark identifies a source of goods or services like a product name, company name or brand. Quick example: You invent a new type of abdominal cruncher that you name "The Middle Minimizer." Your patent will protect the actual function and design of the invention, while your trademark will prevent others from using the same name.
Patents, which can cost $6,000 to $8,000 to obtain through a qualified attorney, can be a valuable tool, but they can also be difficult to enforce. It's why you see "copycats" of successful products in the marketplace all the time. The copycat product will often have a slightly altered feature or function that's just different enough to ensure it isn't in violation of the original product's patent. This can be extremely frustrating to the original inventor or manufacturer. Even if a company copies your product exactly, it can be very time-consuming and expensive to enforce your patent (and is often prohibitive for small, independent inventors with limited budgets to enforce). It's why a whole industry has emerged to create copycat or knock-off products.
A trademark, however, which costs a mere fraction of a patent to register, can be just as valuable, and they're often easier and less cumbersome to enforce. A trademark can become one of your company's most important and valuable assets. For example, consider all the brands you know, trust and prefer. There are MP3 players, and then there's the iPod. There's ice cream, then there's Ben & Jerry's. There are beach shoes, then there are Crocs. These trademarked names have immeasurable value, and they're protected. You couldn't open up an ice cream shop in your town and call it Ben & Jerry's without a quick visit from a powerful lawyer.
Trademarks can make brand names more difficult to "steal" in other ways, too. For example, say someone comes out with another abdominal crunching product that's the same as yours, and names it "The Myddle Mynimizer." Don't laugh--this isn't far off from what happens all the time. They think they're getting away with something--after all, it's spelled differently. How could that be a violation? Common sense dictates that it's a total violation. Note, however, that the measure of the violation relates to the likelihood of confusion for consumers, not the spelling of the product name.
This is not to say you shouldn't get a patent and that you should rely solely on trademarks. You should evaluate the risks and benefits carefully on a product-by-product basis. What it does mean, though, is that for a much lower initial cost, a trademark can provide immeasurable value.
So what's the process to get one? And, if you're brainstorming names for your new product, store or company, how do you ensure you won't be in violation? It all starts at the United States Patent and Trademark Office's site . In the left-hand column of the home page, click on "Trademarks" and then click on the third option, "Search TM database (TESS)" and you're ready to begin searching. There are a number of search options; try the "New User Form Search" to begin your search.
If your name is already being used, check whether it's "live" or "dead." If it's dead, that means it's no longer in use and is available for use without trademark infringement.
If you don't find your name in live use, you may be ready to apply for your trademark. While you can hire a lawyer to do so (and I've always used one, just to make sure the process was being done properly), it's also possible to file your own application via the Trademark office's online system. You can find an application at the same USPTO site--click on "Where do I start?" under the Trademarks tab and scroll to the bottom of the page. If you do decide to file yourself, be sure to read the instructions closely and follow the process carefully. There's a $325 fee to file a Trademark Electronic Application System form--which is non-refundable even if the USPTO discovers in its own search that your trademark is unavailable in a specific category.
One important thing to know about a trademark is that you should begin using it immediately, prior to the formal application process. And keep detailed records regarding the date the mark is first used in commerce; this is of critical importance when filing the trademark application paperwork. Additionally, by placing the trademark symbol beside your product or service name, you acquire some common law rights. This varies from state to state.
So remember: A trademark can pack a real bang for your buck as you launch your invention into the marketplace, especially if your product is the next iPod, Crocs or Ben & Jerry's.