The best way to protect your logo is through registering it with the USPTO (United States Patent and Trademark Office), but there are other simpler actions you can take to protect your logo.
To protect a logo, an individual or business should start using the logo to establish the right to it. To increase protection, the logo may be registered as a trademark through the state in which the business operates. Or the trademark may be registered through the USPTO for federal protection.
Small businesses may not need a nation-wide protection on their logo, but they will want to look into all of the options available. They should also get familiar with what rights they might already have prior to registering a logo.
Rights of an Unregistered Trademark
You can be the owner of a logo without registering it as a trademark. (Source) You have “common law” rights as the owner of a trademark even if it isn’t registered. If you are a small business owner or a freelancer looking for a way to protect your brand new logo, you may not need to look into an expensive and time consuming registration processes yet.
Rights of a Trademark Owner
If you have created an original logo or commissioned someone to create a logo for you, you own the logo. You are legally the owner of the image and you may add the TM symbol next to it. The TM next to an image is a signal to others that your image may not be registered, but it’s still protected under the common law rights. Putting the TM next to your logo in its early stages, can help you avoid infringement issues.
While you won’t be necessarily protected by the TM symbol, it can serve as a warning to others that you own the logo you are using. The law states that you have rights to the image in the area where you begin using it and in zones of natural expansion. This means, for example, that if you start a small jewelry business in Russellville, Alabama after ensuring that no one in the area is using a similar logo, you may continue to use the logo in Russellville. You may also start showing products and promoting your logo at farmers markets in Spruce Pine, Belgreen, and Littleville. As your business expands, you will have the right to use your logo in more areas.
If you begin using your logo image online, your reach is broader and isn’t restricted to a geographical area. Using your logo online will help your brand get known, but it increases your chances of being charged for infringement because of the high quantity of brands online.
In order to prove that you own the image, you must begin using it. You own the image, so you are free to use it whenever and however you like in conjunction with your business. As you use the image, you will gain credibility as the owner of the image. The more you use the logo, the more founded your rights are in conjunction with the logo. If an infringement issue arises with another using your mark, proving your first use of the image is crucial to keeping the rights to the image.
Ensuring you Have the Rights
There are drawbacks to owning and using an unregistered image. If there is another image out there that is similar to your logo that is already a registered trademark, you may have charges pressed against you for infringement. You may take measures against this issue by searching existing trademarks for similar logos or images. You may use the TESS (Trademark Electronic Search System) on the USPTO website or search the database from your state registered trademarks. You may also use Google or another search engine to look for similar logos. If you find a similar mark that has been in use longer than yours, you may be at risk of being sued for infringement. If you can assure that your logo is unique and original, you should be safe to use the image.
If you were not the first to use your mark or a mark similar to yours, you may also face consequences. This means that even if the competing image isn’t registered, you may technically still be infringing upon their logo. A dispute typically arises with a “cease and desist” letter. If you have begun to use a logo, not realizing there is a similar logo, you may receive a letter requesting that you stop using the logo. If your opponent can prove their first use of the image to be prior to your first use of the image, they have the right to the image and you will need to cease using the shared logo and create a new one.
You may dispute their claims against your use of the image by claiming that you first used the logo, but if you can’t prove your counterclaim, you may be faced with legal action against you.
To avoid issues of this kind, make sure your logo is one hundred percent original. Using stock vector images or icons is legal if you buy rights to them, but it increases your likelihood of having an image that resembles another logo. Creating your own image from scratch or commissioning someone to create a logo for you will help you avoid having issues with this.
If you do use a stock vector to create your logo, make sure you check thoroughly for another similar logo. In addition to checking for other similar logos, make your version of the vector as unique as possible through color schemes, words, or combining it with another image.
If you do not own the image used in your logo, you could face consequences for using the image without permission. If you created your logo using images that belong to another person or business, you are likely already infringing either a trademark or a copyright. If this is the case, you could face legal infringement consequences.
State Level Trademark Registration
If you have a small business that only operates within a specific state, a state-level trademark registration is all that will be required. While it varies from state to state, generally, the price for a state-level trademark registration application will be substantially less than the cost to register with the USPTO.
Each state has their own process for registering a trademark. Find your state’s trademark website from this list. Before you apply for registration, be sure to check the database for similar trademarks that have already been registered.
Each state’s process varies, but most have very similar requirements. You will likely have the option to apply online or by mail-in application. You will send in your logo on paper or in an image file. They will keep a digital copy of your image. You will also need to fill out an actual application which includes the following information:
- Business name and basic info
- Name associated with the trademarked logo
- Type of trademark you want to register
- Class of goods/services associated with the trademark
- State your filing basis
The name associated with the trademark is generally the business or person creating the trademark. If you have used a name in your logo, you will need to document how the name is connected to your brand and ensure that you have permission to use the name.
The type of trademark you want to register is one of the most important pieces of information. You may need to send in copies of the image as well as define the names associated with it. If you are attempting to trademark the usage of your logo name, you will need to specify that.
You will need to designate the class of goods or services with which you want to use your logo. If you have multiple classes that you want to reserve your trademark for, often, you will be required to pay fees for each class you want your trademark to apply to.
Your filing basis is a statement of your logo use. You may file for “Use in Commerce” or for an “Intent to Use.” If you have been using your logo for your brand already, you will file for “Use in Commerce.” Getting a trademark registered this way will ensure that you have the right to use it on products and in marketing schemes as you do business across different areas in your state.
Filing for an “Intent to Use” means that there is no connection with the logo to a brand yet, but you can prove that you intend to use the logo.
Registration through the USPTO
To register a logo with the USPTO, the first step is to check for other similar trademarks. After you have made sure that your logo is unique and has no conflicting images, words or designs with another registered trademark, you need to fill out an application to register a trademark. You can fill out a trademark application on the USPTO website through their TEAS (Trademark Electronic Application System). There are two types of applications you can fill out, the TEAS Plus or TEAS Standard.
The TEAS Standard application for a trademark registration is $350 per class of goods or services. This means that if you have a logo you want registered in two different classes, perhaps software and apparel, you will need to pay two fees for each of the classes. The standard application is a more advanced application with more customization options.
The TEAS Plus is $250 per class of goods/services. This application is recommended because it’s cheaper and easier to process. If you file with the TEAS Plus, you must have the following applicable information or it will be processed as a TEAS Standard and you will be charged the additional $100:
- Claim of prior registration
- Consent of individual identified in mark
- Concurrent use claim
If any of these are not applicable, it is not necessary to have them on your application, but you must ensure that they are filled out as not applicable or you may still be charged.
If you don’t have much experience with trademark registration, the TEAS Plus option might be the easiest route for you, but there are still reasons for using the Standard.
If you have found an image that is similar to yours in the TESS search, but the product differs enough that there won’t likely be much confusion, you can use the Standard application to customize your application and avoid likelihood of confusion. A common reason for refusal of registration is likelihood of confusion. This is when another image is similar enough to your own that there could be possible confusion regarding the two images. If you use a Standard application, you can help remedy this confusion by customizing the class of goods/services more than is possible on the Plus application.
The TEAS Plus application has a higher percentage of registered trademarks than the Standard application. Because the process is easier with the TEAS Plus, registration is more likely.
The USPTO application will require all of the information listed above that is required for the state level registration.
Check for Similar Trademarks
Before you start the complex searches on the registered trademark databases, you should start with a quick Google search. Search for logos that may be similar to yours using keywords, business types, and products. This will give you a quick look into the popular images or logos out there that may be similar to yours. If you don’t plan on registering your image yet, any image you find should be carefully considered. If you begin using an image that isn’t trademarked, but has already been in use, you will still face the consequences.
After completing a few quick searches, trying different keywords or search terms, if you haven’t found anything too close to your image, begin searching the official databases.
To check for a similar image that has already been trademarked, you should use the TESS on the USPTO website.
If your image doesn’t bear resemblance to a trademark registered through the USPTO, you should check your state-level database. Most states have a keyword search for active and expired trademarks. If you find a similar image, you may want to alter your logo design.