If your trademark includes words, letters, or numbers, before filing a trademark application you will need to determine whether you will include any logo or stylistic element(s) as a part of your trademark application. The U.S. Patent & Trademark Office (USPTO) requires you to specify whether or not you are claiming any specific font, style, size, color, or graphics as part of your mark.

Marks without a claim to a specific font, style, size, color, or graphics are known as standard character marks and are examined purely based on the words/letters/numbers used in the mark, regardless of any aesthetics. 

If your mark is a combination of words or characters with design elements, then the mark is a design mark and the design elements are considered when the USPTO determines if the mark is trademarkable.

As each mark has different elements to consider when the USPTO determines trademarkability, each type of mark needs a different trademark application and must be examined separately.

If you want to protect both types of marks, you can file trademark applications for each type of mark separately. If your budget is tight, then choose which aspect of your mark is the most important (the words or the design) and then file a trademark application to protect that mark.

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While your domain name and your trademark may be the same word/phrase, they are separate things.

A domain name is an Internet address, such as www.milleripl.com. It is the name that individuals type into a browser to access a website. The rights to domain names are regulated by domain name registrars, such as GoDaddy. You can obtain a domain name by purchasing it from the registrar.

A domain name can be registrable as a trademark if the name serves to identify the source of a good or a service, such as the use of a domain name on marketing or promotional materials for services or packaging for a product.

Vise versa, you can secure the domain names that correspond with trademarks. However, as opposed to trademarks which can cover the use of the same or similar words. Similar domain names can pose problems for people looking for your website and they can dilute your trademark. To avoid this issue, you may want to acquire multiple domains names with different spellings or endings such as .com, .net, and .org, etc. Also, you may consider domain names with variations in spelling, spacing, hyphenation, abbreviation, gripe names, common typographical errors, and so forth.

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Trademarks are not limited to words and logos alone. There are other categories of trademarks that can help you protect your business's intellectual property rights. Here are a few unique categories of trademarks that can truly help you to protect your business's brand:.

Product Packaging Shapes/Designs

You can protect the packaging of your product with a trademark. For example,  Coke has used the same bottle design for generations to the extent that consumers now recognize the design of the bottle alone when looking for a Coke. So if you have unique product packaging protect it.

Restaurant Themes And Color Schemes

You can protect the theme and color scheme of a restaurant. Five Guys restaurants always have red and white checkerboard tile walls, natural wood furnishings, and red countertops. These unique color and décor can be protected with trademark as long as you can show consumers recognize they are in your restaurant merely by recognizing the color scheme and the design.

Sounds

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If another business has the same name are you in trouble? If you have an online presence it is likely only a matter of time before your business receives nastygram or threatening email from somebody accusing your business of infringing on another business's trademark by copying their business name, slogan, or logo. Cease and Desist letters are ubiquitous. The short answer is, “it depends.” It depends on: - Whether the other business is in the same industry - Whether the other business is in the same geographical market - Who was using the mark first - Who registered the trademark first. As many legal issues turn on the circumstances surrounding the issue, so here are a few assumptions before diving into the details: - Trademarks include slogans, logos, trade dress, business names, and so forth, you these are interchangeable in the examples below. - Very Famous Marks play by a different set of rules so the examples below assume the marks are not famous marks. - Your business name is a registerable/eligible trademark. So if you receive the nastygram or cease and desist letter here are a few questions to answer first:

Does the business claiming infringement operate in the same geographic market?

If your customers are in different geographical regions, there is less likely to be customer confusion because you don't have the same customers. However, the internet complicates things because if both businesses are online you may have overlapping markets. If your customers are in different geographical regions, there is less likely to be customer confusion because you don't have the same customers. However, the internet complicates things because if both businesses are online you may have overlapping markets.

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One of the first sets businesses often take in getting started is coming up with a logo for their company. It is exciting to see the company start to come to life. After they so carefully design their logo, then they want to protect it.

If the startup is new to the branding world, the business may ask what they should do in an online forum, which advice is often wrong. To protect your logo, you need a trademark. No, you should not copyright or patent a logo design. Patents are for inventions and copyrights are for artistic works (books, paintings, movies...). Trademarks are for brands.

As soon as you have your logo, you may start using a small TM symbol next to your logo. The TM symbol indicates that the design belongs exclusively to your business and that you intend to register a trademark in the future. Using the TM gives you some common law protections for your logo. If you want more complete protection of your brand, you can file for a registered trademark. If/when you get a registered trademark, you can start putting an ® next to your logo. A registered trademark gives your logo design additional protections under the law. You can not use the ® symbol unless the US Patent and Trademark Office has granted you a registered trademark for your logo design.

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Does capitalization matter for trademarks?

If a company has a registered trademark on "HAPPY", can someone else still use the lower case version of the word (happy) without infringing on any trademarks or copyrights?

Usually, capitalization, font, letter size, and so forth are not relevant for a trademark unless the trademark is for a design and not a word. Where many trademarks are word marks, the typesetting factors are not involved.

Additionally, trademarks are associated with particular goods or services. Accordingly, one person may have the trademark Happy for food, another person may potentially have the same mark for automobiles, and another person can have the same mark for legal services without the people infringing on each other's trademarks even though they are for the same word.

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Someone is using my trademark as their URL or a similar URL to confuse my customers. Are they infringing my trademark?

When I started my business, I trademarked my business name, "Magqic," with the USPTO and registered my URL with a domain registrar. Since I did so, someone has purchased the URLs Magqic.net, Magqic.org, Magqics.org, and Magquics.com. Is this considered a trademark infringement? Is there anything I can do to stop them?

TRADEMARK INFRINGEMENT AND DILUTION ARE TWO SEPARATE CLAIMS WITH DIFFERENT STANDARDS AND DIFFERENT RECOURSES.

Trademark Dilution

You can only suffer trademark dilution if your name is famous. Think of Apple, Disney, Nike, Ford, etc. Unless Magqic (or whatever the name of you business is) resonates with the public and is famous, it is going to be difficult to claim trademark dilution. Trademark dilution gives the owner of a famous trademark standing to forbid others from using that mark in a way that would lessen the mark's uniqueness.

Trademark Infringement

Trademark infringement depends on several factors, the two primary factors of which are: (1) Who used the name Magqic for commercial purposes first, and (2) What goods and/or services were sold using that name. As a general rule, whoever started using the name for similar goods and/or services first has the superior trademark rights to the mark. Trademark infringement is based on the likelihood of customer confusion, meaning, will a consumer likely to be confused that the other company's goods or services come from your company? If the another website with the same or similar name carries different merchandise or offers different services, the likelihood of confusion may be low.

Cybersquatting

Buying a domain name that reflects the name of a business or famous person with the intent of profiting off that business is considered to be cybersquatting. For example, buy a URL with the sole purpose of selling the name back to the business or celebrity for a profit is considered cybersquatting. Cybersquatting to make a profit The Anti-cybersquatting Consumer Protection Act of 1999 authorizes a cybersquatting victim to file a federal lawsuit to regain a domain name or sue for financial compensation. Under the act, registering, selling or using a domain name with the intent to profit from someone else's good name is considered cybersquatting. Cybersquatting victims may also use the Uniform Domain Name Dispute Resolution Policy adopted by ICANN (an international tribunal administering domain names) to enter arbitration to resolve a dispute of cybersquatting on a URL.

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It is all about the brand

It can take a long time to build a brand. Make sure yours is protected

You buy a new pair of jeans or your favorite candy bar. You look down and notice an ® or a ™ next to the logo and wonder what does the ® or ™ mean?

You have a brand you want to protect.

Should you put the little R or the TM next to your logo, design, or other trademarks?

As soon as you start using your trademark.

™ stands for an unregistered trademark. As soon as you start using your trademark, such as your logo, you get some instant rights (common law rights) to protect your trademark. You do not have to apply for a ™ trademark with the US Patent and Trademark Office (USPTO). As soon as you use the trademark you get the common law rights.

To be able to enforce your common law rights associated with ™ trademark you need to be able to show that you were using the mark first and that the person/company that started using the same trademark after you is causing a confusion in the marketplace.

So why doesn't everyone just rely on ™ trademarks to protect their brand? The rights associated with ™ trademark rights are inferior rights. They are not as strong as the ® trademark rights. If you end up going to court to enforce your trademark, the protection offered by the ™ trademark rights is limited and the amount of money you may recoup is limited.

Registered Trademark.

To get an ® trademark, you must submit a trademark application to the U.S. Patent and Trademark Office. Once you submit your trademark application, you set the date that your rights begin under the federal trademark law. With a registered trademark, you can clearly show when you started using your trademark and because it is registered with the federal government, others may be on notice that you are using the registered trademark. Federally registered trademark. Once the U.S. Patent and Trademark Office issues your trademark as federally registered, you have superior rights to enforce your rights and collect damages when others try to use your registered trademark.

So should you rely on ™ trademark rights or ® trademark rights? When possible you should always register your trademark with the U.S. Patent and Trademark Office. Once you get a registered trademark, the public is on notice of the owner's claim to the mark and there is a legal presumption that you own the registered trademark, with the exclusive right to use the mark in the U.S. A start-up or small business that registers its trademarks may have an easier time defending its trademarks against anyone who tries to use them without permission.

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Should I buy the designer clothes from the boutique store or the no-name clothes from Walmart? What is the difference between the designer clothes and the no-name clothes? It is all about the brand.

In business branding is everything

People like nice things. They like nice cars, nice clothes, nice smartphones, nice everything. How do you know what is nice and what is junk? You often base your purchase on the band of the product. You buy the Mercedes because it represents a status symbol of money and quality. You buy an iPhone because it represents a high-quality smartphone.

Trademarks are a symbols or word that are a symbol of a product, service, or company. A trademark lets you know who made a product. When you see a trademark like Pepsi or Coke you know you are getting a great soft drink because you know it is a Pepsi or Coke soft drink and not a knockoff. We use trademarks to identify who we are buying something from.

A trademark is a word, logo, or design

Once you register your trademark with the United States Patent and Trademark Office (USPTO), you can continue to use your trademark to brand your product or company as long as you are using the trademark and paying the associated fees.

Miller IP Law is a firm that focuses on small businesses, startups, and entrepreneurs/solopreneurs. We’re easy to use. We offer affordable pricing that’s transparent and flat-rate. We focus on the little guys who actually need our help. If you’d like an attorney on your team, simply schedule a Zoom call, and we’ll take care of the rest.

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