I know you’ve seen that little “TM” in a circle indicating that a logo or a series of words have been trademarked, but what you don’t know is that this specific symbol doesn’t mean a hill of beans in court. The fact that you’ve used that symbol indicates your desire for exclusivity, but you have NOT registered your mark, and the US Patent & Trademark Office (USPTO) has NOT given you exclusive use. That only comes after a hard and expensive slog through the bureaucracy. When you’re finished you will be allowed to put the “R” in a circle next to your mark indicating you have followed the rules and have exclusive use of that symbol or set of words. If you are not intending to sell your trademarked goods over your state line, having a registered trademark may not be necessary. Here are the basics you need to know.

DEFINITION
Just to be certain we are talking about the same thing; let's define a trademark using the USPTO's definition. "A trademark is a word, name, symbol or device used by a manufacturer or merchant to identify his service and distinguish it from others." Among other things, this definition covers logos, trade names, trade marks, service marks, slogans, sizes, shapes and colors. Trademarks are different from patents which protect certain products or processes, and copyrights which protect the expression of ideas in such items as books, movies, and computer software.

WHERE TO OBTAIN INFORMATION
Begin by visiting http://www.uspto.gov/menu/tm.html. From this page you can perform a preliminary search to see if anyone is presently using your new mark, check status of marks, and apply for yours. You can do the whole thing on-line or you can download forms and use snail mail. There is a lot of information on this site, so spend some time roaming through the pages.

COST
Be prepared to lay out a minimum of $325 for USPTO to do their work for the simplest one-class trademark (each additional class costs another $325); but understand that if you haven’t done your homework and they refuse to grant you exclusive use, you are out the cash. No refunds. The cost goes up to $650 for trademarks for computer software in class 9 and t-shirts in class 25.

ATTORNEY HELP
Your local trademark attorney will do everything for you, but the cost can add several thousand more to your basic costs. Most attorneys farm-out the critical “trademark search” part of the task to an expert PTO attorney firm such as Thompson & Thompson (http://www.t-tlaw.com). This adds a minimum additional cost between $445 and $605 to your bill. Don’t fight this. It’s worth the added cost as these firms offer a guide through the PTO as part of their service. If you are going to go it alone, hire this or a similar firm to do the search.

PROTECTION
No one can keep someone from using your protected name, logo or slogan; but having a trademark gives you the right to sue in federal court for actual trademark infringement and for unflattering comparative advertising. This means your competitor may be liable if he or she uses your name without permission or uses it badly in one of their ads. Usually a letter from your firm’s attorney to a company infringing on your trademark is enough to get them to quickly pull back and apologize. A trademark is good for ten years and is renewable with some restrictions.

INTENT TO USE
You may pre-register trademarks at the conceptual stage, indicating on the application your intent to use at a future date. With available extensions, this protects your product for up to three years while you are completing development. You still have to actually register the trademark, but it is no longer necessary to ship product interstate before a trademark can be granted as you do with a “already in use” trademark application.

STATE PROTECTION
For all intents and purposes, a trademark obtained in your state doesn’t mean much. While it may be true that you can stop others in your state from copying your trademark, but there is no protection against out-of-state firms using your mark or name. They can even do business in your state using your trademark! Go figure.

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Paul Tulenko is a Small Business Success Consultant based in New Mexico. Additional tips and suggestions are available at www.tulenko.com or call (toll-free) 1-866-TULENKO.