Although we have talked a lot about the process of registering your trademark, you first have to develop one to do that.
It sounds easy. Just use your company name and that’s that. The problem with this is that your company name may not be the best choice for you to trademark. If you are a company named “Smith” for example, there could be hundreds of other companies out there with the same name.
Even more so, the term “smith” doesn’t really tell the consumer anything about your product or service which means it doesn’t create nearly the buzz that it needs to in order to be successful for you.
When you are choosing your trademark then, you need to consider both the ability of the trademark to be protected, as we have discussed, as well as the likelihood for you to be successful in a marketing campaign for that trademarked term.
You need a unique trademark that is easy to market for your cause. It’s not easy feat.
In fact there are many different things that should go into this process that have to be considered from the beginning by you, the potential owner of the trademark. Here, we’ll talk about several of the important considerations you have to think about when it comes to selecting the right trademark for your needs.
Your brand name may seem like the perfect type of product to trademark. After all, it is your name. But, that’s not always something that can work. One reason for this is the fact that the United States Patent And Trade Office has some pretty strict rules on what can and can not be trademarked in the first place.
In their term, “a spectrum of distinctiveness” must be used. They use a scale of how easy it is to protect the brand name using a trademark. The more unique the term and the more distinct it is, the more likely it is to be protected. Not all brand names can fall under this category, though.
The more unique and distinctive, the more likely it is to be protected. Therefore, consider a trademark that is fanciful, suggestive, and creative. But, don’t consider a trademark that is a description or a generic term. Let’s break a few of these types down for you.
Consider a fanciful term, for example. If you look at many of the different trademarked names out there today, you would not have known them before they were trademarked as terms that were very familiar.
For example, you probably have never heard the term “Starbucks” before you saw the business and learned what they offer. But, today, if you ask most Americans if they want to stop at “Starbucks” they would know just what you are talking about.
This term meant nothing to you or anyone else before it was coined by the coffee giant. Others that are like this that you may know include “Verizon” “Applebees” and “Exxon.” As you can see, you probably never heard of these terms before they were used to help trademark a company.
These fanciful types of brand names work as trademarks because of how unique they are. They are an immediately beneficial trademark to the company.
In addition, because they are so unique that no one can ever claim to have used them before, the trademark given to them can provide the most protection possible.
Another term that the USPTO uses to describe the most able to be protected types of trademarks are those of arbitrary. It is, like that of fanciful, one of the best types of trademarks to consider using.
An arbitrary trademark is one that has a term in the English language that is used to trademark or brand a product that has nothing to do with its actual English meaning. There is no relationship between what the word actually means and what the term is being used to brand.
For example, you may right now be using one of those types of trademarked products. The Apple Computer is the ideal example. Although the term “apple” is used to trademark the computer company in a very distinctive way, the term itself “apple” refers to a fruit, not a computer.
Therefore, since a computer and an apple have little in common with each other, this is an ideal match for a trademark in the way of protection abilities.
One the other hand, though, if you were to be growing apples on a farm, a trademark of “apple” just would not work here.
Because there is no connection between the name of the trademark being used and the actual product, it is easy to protect this type of trademark. Therefore, arbitrary marks are some of the best to use from a trademark standpoint. As for how you will market them, that’s a different story altogether!
Yet another term that the USPTO uses to describe those situations in which a trademark can and can not be protected is that of suggestive. Although it is in the middle of the scale between good and bad, in most cases, a suggestive trademark can be an excellent choice to consider for a trademark or brand name.
In a suggestive trademark, there is some correlation between what the term is and what is being offered, but you must really think outside of the box to come up with just what the implication is. These suggestive trademarks can allude to something that is offered or a characteristic of the product or business but it must be somewhat difficult to come up with a conclusion.
A popular trademark that you probably know that is considered to be a suggestive trademark is that of 7 ELEVEN. You know these are the corner stores that you grew up with. But, you may not have realized that this convenience store was once open from 7 am to 11 pm and therefore is named as it is.
There are many others out there just like this. Consider “Playboy” as another example. Perhaps you have head of the “Greyhound” which implies the speed of the transportation.
These types of terms are ideal because they can be easily trademarked without any worry about what the potential trademark infringement would be.
Yet, one thing that is common about each of these types of trademark choice is that they can be difficult to market. Sure, it makes sense to trademark “greyhound” for a bus fleet, but in order to let the community know that this is a bus fleet; you will need to spend a good amount of marketing dollars to do so.
For that reason, many times companies will use less arbitrary and fanciful types of trademarks and will instead do with something that is more descriptive, especially when marketing dollars are less.
Descriptive is another type of trademark that is used to describe the brand name, but this time the trademarked name will actually be a description, in some form of the product.
The benefit of a descriptive trademark is easy to understand. A company that doesn’t have a lot of marketing dollars can’t spend a fortune telling their consumers that the term “orange” refers to their type of radio. Instead, descriptive terms are ideal for those that are using them to help market their business.
You can find many of these terms used. The toy store, “Toys R Us” is a great example. You can easily see what the store is all about but it still has a unique feel to it. “Value Mart” could be another one.
Yet, as with the example of “Value Mart” the USPTO often has problems with providing trademarks for such descriptive and common place types of names. That’s because there are likely to be many different “value marts” out there that could potentially be in trouble should they register a trademark like this.
One way for a company to get around this type of problem is to create what is called a “secondary meaning.”
A secondary meaning is one that has been created by the company, perhaps through extensive marking and advertisement. By providing a simple term as a name brand, they have done so well at establishing their name brand through this that it actually is a secondary meaning for the term now.
For example, “Frosted mini wheats” doesn’t sound like it should be trademarked since it is a common name and description of a product. Yet, when you hear the term, “Frosted Mini Wheats” you likely think of those square breakfast cereal ingredients. It’s created a secondary meaning for the term. The challenge is proving that it has done this.
Even with this said, it is important for you to realize that if you do use a descriptive term to help promote your product it is very difficult for most companies to gain that secondary meaning. In fact, for a company that is new and without a marketing budget, it is near impossible to do.
You can use a term like this for marketing benefit easily. Yet, you should consider looking into terms that are more unique and therefore more likely to gain protection from a trademark, something more descriptive terms like these find.
Without a trademark of your brand name, you simply can not stop others from profiting from it. Any time and effort you put into making it something unique will still be potentially at risk if someone else uses it because it is unregistered.
There are some terms that just have no potential of becoming a trademark. If you want to trademark your phone to be “phone” it just isn’t going to work. When your trademark is something that is used to describe a single product or even a whole class of them, it is too similar to other products and unlikely to be trademarked.
There is no way for the USPTO to actually protect a trademark that is used commonly like this and therefore it will not pass registration.
Sometimes, trademarked items actually do too well. For example, although the company name of “Kleenex” is a trademarked name, today, most people don’t ask for a tissue, they ask for a “Kleenex.” The same is true for the “Q-Tip” as it too has become the name to describe cleaning devices that are used in your ears.
In some cases, this happens so much so that the term actually becomes the term to describe that type of product. When a trademarked term actually becomes a generic term, it actually loses that trademark. This process is actually called genericide.
There have been many products that have had this happen to them in the past. When you go to the mall and use the moving stairs there, you call them an “Escalator” which used to be its trademarked name. Now, they all fall under this term. The same goes for the bouncing thing that your kids wanted called a “trampoline.”
Now that you have all of this information, you can make a decision about the trademark that’s right for you, right?
It really is still not that easy. How can you come up with a great trademark that will fill your need? Will you use a fanciful trademark? Or, is descriptive the best that you can do on your low marketing budget?
You don’t have to make a decision on this type of thing just yet. Instead, work through a few more exercises to help to determine what the right trademark is for you. You can also do some research on some things you think may work to find out more.
If you need some help in determining the right trademark term for your use, we’ve got a few for you. A search online can help you to find even more ideas to help you to determine the best possible trademark for your product or service.
Probably some of the easiest and even the most beneficial types of trademarked terms are those that are suggestive. They can also be the easiest to market with trademark protection abilities unlike the descriptive terms that you may think to use.
But, unless you are a naturally creative person, these can be somewhat difficult for you to come up with. Here are some ideas that can help you to determine a trademark or brand name.
Another thing that you should consider doing to determine the best trademark for your product is to sit down and brainstorm.
Think about those words that come to mind first when you think of your service or product. Think about descriptive terms that showcase the benefits, the cost effectiveness or the tools that your product provides. Consider the various methods that it can be used. Determine the characteristics of that product.
Take the time to jot all of this down on paper. Anything and everything that comes to mind will be helpful to you here.
Now, take the time to find out if you can pull any of that together into a descriptive term that is not too familiar. Try putting together some words that offer distinct characteristics. It doesn’t even have to make sense. You only want to use terms that are positive, of course.
Many people like to consider acronyms because they can really mean anything you want them to mean. You can definitely do this and be successful.
Probably one of the most successful examples of a trademark that is an acronym is that of IBM. Most people have no idea that it means International Business Machines, but they know that they can rely on an IBM product.
Sometimes an acronym can help you to be as descriptive as you want (for example using several of your brainstormed terms) without being obvious and therefore being successful at protecting your product.
Is there an acronym that you can come up with that will offer your brand name some success? Try to put together a word this way for a more arbitrary trademark.
Another great option that you should consider is that of other languages. You can always use a foreign language as a tool for coming up with a new trademark. If you speak another language or have the ability to look up a few words that would describe your product, go for it!
Using “very good” would be very common and nearly impossible to trademark. But, using “Tres Bien” would work to your favor in the United States. You could couple that term with your own product’s descriptive term could be very helpful.
One thing to note though about using different languages is that you still can’t be very generic about them. The USPTO will still go through and check for how generic the term is. If you are using a term that means computer in another language, it won’t be able to actually get trademarked as that simplistic of a term.
Go ahead. Put your mind to paper and just make up a word. Put it together as it sounds. Think of something that is a combination of words that somehow works with your product. Perhaps you could abbreviate the two owners of the product’s names and combine them for a new word.
Many products have come this way. In fact, as we discussed this can be one of the best ways to get your product trademarked. It is a completely unique term that is yours alone to use.
While it may be more difficult to market this term, you’ll still find benefit in using it because of how distinctive that name is. You will be able to go through trademark as long as you make sure that no one before you has come up with the same combination of terms.
There are plenty of ways that you can come up with a term or phrase that can be trademarked and therefore be beneficial to your trademark process. The best thing for you to be here is creative!
Okay, so not everyone actually is creative enough to come to an agreement on a trademark term. You can hire a firm or even a trademark attorney to provide you with some help in this regard. You can find many companies and even freelance writers willing and able to provide you with the help you need.
If you hire a trademark attorney for this task, insure that they will also provide for some type of analyze that will insure that what they come up with is unique enough to pass trademark registration.
While this may cost you a bit more money to make happen, for many companies and individuals, it is the best possible solution for your needs if you have a lot riding on that trademark and you don’t want to take any chances. You do, of course, have the final say in if it is used.
Hopefully by now you have a few ideas of what you could use as trademarks for your new venture. Take your time here so that you can be sure you have just what you are looking for in a trademark. Even better, make sure that you have several to choose from.
Most individuals will go into the process of selecting a trademark with a few choices; just in case one or two don’t work they have something else that’s immediately available. Otherwise, the process really can become drawn out.
Work with an attorney (which we’ll talk about next) to help you to get through the process of registering your trademark. If you’ve hired them to provide a service to you, insure that they will help you throughout the entire process.
Now that you have several different trademarks to choose from, go back to our last chapter and go through the process of searching for those terms using the free searches and the US Trademark Search. Find out as much as you can about the other companies that could be using trademarks similar to your own.
Once that’s done, you can move into the application process. You should consider getting some professional help during this process, which is why our next chapter is about trademark attorneys and what they’ll provide for you during this process.