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A trademark generally protects a word, phrase, symbol and/or design that distinguishes the source of the goods -- what we think of as brand name and brand recognition. A patent generally protects an invention, including the functionality or design, or in other words, “any new and useful process, machine, manufacture, or composition of matter, or any new and useful improvement thereof.” 35 U.S.C. § 101. Copyrights, meanwhile, generally protect artistic works such as books, photographs, arts, movies and music.

Under U.S. law, a “common law trademark” is generally established when someone uses a company name, logo or slogan in commerce, even if it is not registered. So, why pay to register a trademark when a common law trademark may already exist? Common law rights ordinarily are limited to the geographic area where the mark is used as opposed to the nationwide protection customarily obtained when a mark is registered with the USPTO. So, unless registered, the use of a mark can be geographically limited, which hampers the ability to expand the brand. On the other hand, a person using a mark in a limited geographic area could be boxed in by someone else who offensively registers a similar mark. In addition, registration of a trademark can give the person holding the registered trademark a leg up in court as to the validity of the mark and the date of usage in later trademark infringement litigation, if it comes to that. There are also favorable remedies available to registered trademark owners in the event of litigation. Finally, once a trademark is accepted by the USPTO, it will be maintained in the USPTO database, which can discourage others from using the mark in the future. Future companies should be on notice that the mark is already spoken for, which should in turn help avoid at least some disputes

The United State Patent and Trademark Office will not necessarily approve every name for a trademark. The USPTO generally describes names as “generic,” “descriptive,” “suggestive,” “arbitrary,” or “fanciful.” A trademark application is more likely to be registered by the USPTO the less “generic” or more “fanciful” it is. Generic names are rarely given protection. For example, a company that makes screwdrivers and tries to trademark the name “The Screwdriver Company” is unlikely to be successful. Merely descriptive names are also unlikely to receive registrations from the USPTO. For instance, “The Metal Screwdriver Company” is not likely to pass muster because it merely describes a screwdriver as being made of metal. Ordinarily, descriptive marks are entitled to trademark protection, but only if they have gained what has been termed “secondary meaning.” In other words, the name has become so famous that despite the generic nature, the public associates the product with a specific company. One example is International Business Machines or IBM. Fledgling companies generally are not well known enough to have attained a secondary meaning. Generic names generally do not attain secondary meaning, so are unlikely to be registered by the USPTO. The chances of approval normally improve with suggestive marks, which often hint at the quality or another aspect of the company. For example, “Herculean Screwdriver Company” may be more likely to be registered by the USPTO than “Strong Screwdriver,” but conveys a similar meaning. However, the line between a suggestive mark and a descriptive one is difficult to draw. Microsoft, which makes software for microcomputers, and Citibank, which provides financial services, are some well-known examples of suggestive marks. Brand owners often like these names because it gives the consumer a good idea of what the company does without the need for additional (and often expensive) education or advertising to disseminate the name for the particular product or service. Next on the list are arbitrary marks. These are usually existing words used in a way unrelated to their normal everyday meanings. Hence, Chocolate Screwdrivers may work. The textbook example of the arbitrary mark is Apple Computers - not to be confused with Apple Records. Finally, fanciful marks are ordinarily the easiest marks to be approved. A fanciful mark may be a made up word or a very rarely used word that has nothing to do with describing the products. “Glotz” for a screwdriver company may work. Some examples of fanciful marks are Yahoo!, Google, Exxon and Spotify. Other common reasons the USPTO may reject names can include the following: it is too similar to another name already registered. it is a surname. it is geographically descriptive of where you are doing business

Initiating the process will usually take anywhere from 5 to 10 minutes on the Trademark Engine website. For a typical application, be prepared to provide at least the following:

The actual mark you want to use.
The full legal name and address of the owner of the mark.
(If your mark is ""In Use"") A copy of the specimen which is an example that shows you are using the mark in commerce. This could be a picture of your product or a website advertising your service.
A category of the goods or services where you are using your mark from our drop down menu and a description of your goods or services.
(If your mark is ""In Use"")The date you first used the mark in commerce and the date you first shared the mark anywhere."

Trademarks are normally used to register a name, logo or slogan related to the sale of goods. Service marks are often used to register a name, logo or slogan related to the sale of services.

Conducting a search of your mark before starting the registration process may help avoid obvious duplications of pre-existing marks and the expenditure of nonrefundable applications fees. Newer companies may more easily make name changes while they are getting off the ground than years later and after substantial investment in a brand and associated goodwill. Running searches with the USPTO does not guarantee superior rights to a particular mark. There could be someone already using a similar mark, but who did not register it with the USPTO. In that case, a registration could be subject to challenge by the owner of the earlier-used mark based on of common law trademark rights.

Most states allow incorporation with a chosen name as long as it does not conflict with another name also registered with that state. For instance, ACME Co. may be available in Texas, but there could be an ACME Co. in New York that has already registered that trademark and under trademark law has the exclusive right to use that name throughout the United States. Name conflicts that may arise when forming a business within a state are generally determined by a different analysis than name conflicts that may arise with trademarks. While actually using a name to sell a product or service may provide common law trademark rights, being allowed to use a company name or a d/b/a does not typically provide any trademark rights. Registering a trademark with the United States Patent and Trademark Office is generally better than relying upon common law rights and the mere fact that a given state allows the use of a certain name. Conversely, the availability of a trademark with the USPTO is not a guarantee that a given state will permit the use of that corporate name. The USPTO generally does not search individual state or d/b/a filings. But, Trademark Engine’s comprehensive search reports cover both the USPTO, state and d/b/a filings as well other sources to help determine the availability of a desired brand