What is a trademark?
A trademark is the name, logo or other sign customers use to tell your products from everyone else’s. The rights come from using it, and keeping a registration alive means filing maintenance documents on a fixed schedule.
A trademark is a word, name, logo, slogan or other sign that identifies the source of goods or services, telling customers who is behind a product. A service mark is the same thing for services.
In the US, rights come from using the mark in business; federal registration with the USPTO makes them far stronger and nationwide. A trademark can last indefinitely, as long as you keep using it and file the required maintenance documents.
What can be a trademark?
Names, words, logos, slogans and taglines are the most common. Sounds, colors and product packaging (trade dress) can also qualify when customers recognize them as pointing to one source.
Generic terms for the product itself can’t be trademarks. Words that merely describe the product can’t either, unless there is proof that customers already recognize them.
How strong is my trademark?
It depends on where the name sits on the spectrum of distinctiveness. Made-up and arbitrary names get the most protection, suggestive names get solid protection, descriptive names get little until customers recognize them as a brand, and generic names get none.
This is the chart Modern Mark uses with clients to test a name before filing. A stronger name is easier to register and easier to enforce against copycats.
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Most protected
Fanciful mark
A word or term that is completely made up.
Example Google for a search engine
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Very protected
Arbitrary mark
A word or term that exists in the dictionary, but is used in an unrelated or arbitrary way.
Example Apple for computers
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Somewhat protected
Suggestive mark
Suggests a quality or characteristic of the goods or services without actually naming it.
Example KitchenAid for kitchen appliances
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Not very protected
Descriptive mark
Describes a quality or characteristic of the goods or services.
Example Zer0 for all natural toiletries
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Not protected
Generic mark
Names the actual goods or services.
Example Press On Nails for artificial nails
A descriptive name can still register once years of use have taught customers to connect it with you. See what you can trademark.
Can you trademark a slogan?
Yes, if customers see it as your brand. Examiners refuse slogans that read as an everyday message, a common phrase or a description of the product, and slogans printed only as decoration.
The two refusals that come up most are ornamental and failure to function. A slogan printed large across the front of a T-shirt can be refused as ornamental, because it reads as decoration and not as the maker’s name. The same slogan on a neck label or hang tag reads as a brand. A widely used phrase such as “Live, laugh, love” can be refused because it fails to function as a trademark. Customers read it as a message and see no source behind it.
A made-up or unexpected slogan clears more easily than one that states a benefit. A descriptive slogan can still register later, once years of use have taught customers to connect it with you. For clothing, see ornamental refusals.
Do I have trademark rights without registering?
Yes. Using a mark creates common-law rights, but only in the areas where you trade. Federal registration adds nationwide priority, a legal presumption that you own the mark, the right to use ®, and access to federal courts and customs enforcement against imports.
How long does a trademark last?
Indefinitely, as long as it’s in use and maintained. A US registration needs a declaration of use between the 5th and 6th year, then a combined declaration and renewal between the 9th and 10th year and every 10 years after.
The clock runs from the registration date. Each deadline has a six-month grace period for an extra fee. Miss it entirely and the USPTO cancels the registration. You may still own the mark through use, but you lose what registration adds.
USPTO maintenance fees, per class, under the fee rule effective January 18, 2025, are $325 for the Section 8 declaration, $650 for the combined Section 8 and Section 9 filing, $100 for filing in the grace period, and $250 for an optional Section 15 declaration of incontestability after five years of continuous use. Check the USPTO fee page before filing. Registrations under the Madrid Protocol are also renewed with WIPO.
Is my business name a trademark?
Only if you use it as a brand for goods or services. Registering a company or LLC name with the state doesn’t give you trademark rights, and the state accepting a name doesn’t mean it’s free to use.
See business formation.
What’s the difference between a trademark, copyright and patent?
A trademark protects brand identifiers such as names and logos. Copyright covers creative works like writing, art, music and software, and a patent protects inventions. One product can involve all three.
Modern Mark handles trademarks and copyrights and does not take patent work. See copyright.
More questions.
Q01What is a service mark?
A trademark used for services, such as a consulting firm’s name or a restaurant’s name. The law treats service marks and trademarks the same way.
Q02Can I trademark my own name?
Often, if you use it as a brand. A name that is primarily merely a surname can be harder to register until it has come to identify your business, and registering a living person’s name requires their consent.
Q03What is trade dress?
The distinctive look of a product or its packaging, such as its shape, colors or layout, when customers recognize it as identifying one source.
Keep reading.
Trademark Symbols (™ ® ℠)
When you can use ™ or ®, where the symbol goes and how to type it.
How to Do a Trademark Search
How to search the USPTO database and when a free search is not enough.
Trademark Classes Explained
The 45 trademark classes and how to pick the ones that cover what you sell.
Cease-and-Desist Letters
What to do when you receive a trademark cease-and-desist letter, and how to send one.
Trademark Registration
A clearance search and strategy before a USPTO filing that holds up.
Trademark Enforcement
Cease-and-desist letters, takedowns, UDRP, cancellations and monitoring.
Copyright
Copyright registration, DMCA takedowns when work is copied, and licensing.
Business Contracts
Custom contracts designed to hold up.
Business Formation
The right entity, filed correctly, in nearly any state.
Marketing Compliance
FTC and FDA review of ads, product claims and influencer deals.
Fractional General Counsel
A lawyer on speed-dial, without a full-time hire.
Trademark Monitoring
A year-round watch for copycat filings, with monthly attorney reviews.
Trademark Licensing & Monetization
Licensing, assignments, franchising and co-branding deals that turn a brand into income.
Business Legacy & Estate Planning
Plan who owns and runs the business, and the brand, after you.
IP Litigation
Trademark, copyright and trade secret disputes, taken to court when a letter isn’t enough.
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