Archives for July 2023

How to Trademark a Phrase for Free: Common-Law Trademark Rights Explained

July 27, 2023 by Michael Kondoudis

Quick Answer: You may be able to establish common-law trademark rights in a phrase without paying a USPTO filing fee. Common-law rights can arise from use of the phrase in commerce as a trademark, rather than from filing a federal application. However, these rights are generally limited to the geographic area in which you establish qualifying use and do not provide all of the benefits of federal trademark registration.

This article explains common-law trademark rights in a phrase when you want protection without paying a USPTO filing fee. It does not explain how to obtain federal trademark registration.

If you want nationwide federal protection, see our complete guide to trademarking a phrase with the USPTO.

Originally Published July 2023 | Updated August 2026

By Michael Kondoudis, USPTO-Registered Attorney With 25+ Years of Trademark Experience

Inventor of the YNAT® Trademarking System | 3,000+ Trademarks & Patents Secured | Amazon #1 Best-Selling Author on Trademarks | Member of the Bar of the U.S. Supreme Court | Trademarks Made Easy®

📌 TL;DR

You can establish geographically limited common-law trademark rights in a phrase for free simply by using it as a brand in commerce. Under U.S. trademark law, trademark rights can arise from qualifying use of a mark in commerce without federal registration. However, they are geographically restricted, harder to prove and enforce, and never grant the right to use the ® symbol or nationwide protection. Federal registration is never free. For most growing, online, or multi-state businesses, common-law rights alone are usually insufficient — a federal registration remains the stronger long-term path.

🔑 Key Takeaways

Common-law rights in a phrase are free of charge and arise from genuine trademark use in commerce without a USPTO filing.
These rights are limited to the geographic areas of actual use and consumer recognition.
You cannot use the ® symbol with common-law rights alone.
Federal USPTO registration always requires a filing fee and is never free.
Common-law protection is often inadequate for online businesses, multi-state expansion, or efficient enforcement.

Main Guide: How to Trademark a Phrase.

Learn how to evaluate a phrase, conduct a trademark search, prepare an application, and pursue federal registration through the USPTO.

What “Trademarking a Phrase for Free” Actually Means

When people ask whether they can “trademark a phrase for free,” what they actually mean is: can they “establish common-law rights in a phrase for $0”?

Semantic Graph

“trademark a phrase for free” → “common-law trademark rights” → “use in commerce” → “no USPTO filing” → “limited geographic scope”

Common-law trademark rights arise automatically when a distinctive phrase is used as a brand in commerce. No USPTO application, filing fee, or government approval is required.

These rights are limited in four critical ways:

Geographic scope is restricted to the areas of actual use and consumer recognition.
The owner bears the full burden of proving ownership, validity, priority, and geographic extent in any enforcement action.
The ® symbol may not be used.
No legal presumptions of ownership or validity attach (unlike a federal registration on the Principal Register).

There is no free federal trademark registration. Every application filed with the USPTO requires a non-refundable filing fee.

What Is a Common Law Trademark?

A common-law trademark is a trademark right that arises solely from actual use of a phrase as a brand in commerce, without any registration on the USPTO Principal Register or Supplemental Register.

Under US law, common-law trademark rights are created by use, not by a government certificate. These common-law rights are real and enforceable, yet they remain limited and carry a higher burden of proof than a federal registration on the Principal Register.

Because common-law rights arise from actual use, they generally extend only to the geographic area in which the mark has established rights. Also, the absence of a USPTO registration means that common-law rights do not provide the same nationwide protection associated with a federal trademark registration.

How Far Do Common-Law Rights in a Phrase Extend?

Common-law trademark rights generally extend only to the geographic area in which you have established qualifying use and trademark rights. They do not automatically provide the nationwide protection associated with a federal trademark registration.

A business using a phrase only in one local market may have common-law rights in that market without necessarily having nationwide rights in the phrase.

For information about obtaining nationwide federal protection, see How to Trademark a Phrase.

How to Establish Common-Law Rights in a Phrase

You may establish common-law trademark rights in a phrase without filing a federal trademark application if you use the phrase in commerce as a source identifier for your goods or services. Unlike federal registration, these rights arise from qualifying use rather than from a USPTO registration and generally have a limited geographic scope.

1. Use the phrase as a source identifier

Use the phrase consistently to identify the source of your goods or services. The phrase should function as a trademark rather than merely provide information, describe the product, or serve as decoration.

Whether a particular phrase can function as a trademark depends on how consumers perceive it and how you use it. For a detailed discussion of phrase trademarkability and federal registration, see our complete guide to how to trademark a phrase.

2. Use the phrase in commerce

Use the phrase in connection with actual commercial activity involving your goods or services. Depending on your business, evidence may include product packaging, websites, advertisements, invoices, sales materials, or other commercial materials displaying the phrase in a trademark context.

3. Keep evidence of your use

Keep dated records showing when, where, and how you used the phrase. Useful evidence may include archived webpages, advertisements, packaging, invoices, promotional materials, sales records, and other documents connecting the phrase with your business.

This documentation can help establish the timing and geographic scope of your common-law rights if a dispute arises.

4. Understand the geographic scope

Common-law trademark rights generally do not provide the automatic nationwide protection associated with federal registration. Your rights are generally tied to the geographic area in which you have established qualifying use and trademark rights.

What Common-Law Rights Do Not Provide

Common-law rights do not provide all of the benefits of federal trademark registration. For example, common-law rights do not by themselves authorize use of the ® symbol or provide the nationwide presumptions and other advantages associated with a federal registration.

If you need nationwide protection or want to obtain a federal registration for your phrase, see our complete guide to how to trademark a phrase with the USPTO.

The ™ symbol may be used immediately as a notice of claimed rights. It does not itself create those rights. For complete guidance on when and how to use ™, ®, and ℠ correctly, see our Guide to Trademark Symbols.

How to Document Your Common-Law Use

Enforcement of common-law trademark rights requires proof of the date, place, and nature of first use and continuous use. Strong contemporaneous documentation reduces the burden of proof and strengthens priority claims.

Retain dated records of:

Photographs of packaging, labels, hang tags, or point-of-sale displays showing the phrase used as a brand
Website or online store screenshots that display the phrase as a source identifier (include URL and capture date)
Invoices, packing slips, or sales records linking the phrase to actual commercial transactions
Advertising, social media posts, or email campaigns featuring the phrase
Third-party references (press, reviews, marketplace listings) that associate the phrase with the owner’s business

The earliest clear evidence of trademark use establishes the priority date. Consistent, well-documented use also supports any later claim of secondary meaning.

Key Limitations of Free Common-Law Rights

Aspect	Common-Law Rights	Federal Registration (Principal Register)
Geographic scope	Limited	Nationwide
Right to use ®	No	Yes
Legal presumption of ownership	No	Yes
Enforcement	More difficult and costly	Easier and stronger
Ability to block others from registering	Limited	Strong nationwide power
Best for	Few businesses	Growing brands

Common-law trademark rights can serve local businesses or act as a temporary bridge while a federal application is prepared. They are rarely sufficient once a brand expands across state lines, faces online competition, or requires efficient enforcement.

Want to register your phrase federally? See our complete guide to trademarking a phrase with the USPTO.

When Common-Law Rights Are Not Enough

Common-law rights may be insufficient when a business needs nationwide protection, stronger enforcement tools, federal registration presumptions, or other benefits associated with a federal trademark registration.

For the federal registration process, see our complete guide to federal trademark registration for a phrase.

Frequently Asked Questions (FAQs) About Trademarking a Phrase for Free (Common Law Rights Only)

This reference section provides immediate, direct answers to the most common questions about trademarking a phrase for free to secure common law rights.

Q: Can I establish common-law rights in a phrase for free?

Yes. You can establish geographically limited common-law trademark rights in a phrase without paying the USPTO by simply by using it as a brand in commerce. You cannot obtain a federal trademark registration for free — the USPTO charges a non-refundable filing fee for every application.

Q: Is a common-law trademark the same as a registered federal trademark?

No. A common-law trademark arises automatically from use in commerce and provides only geographic rights that are harder to prove and enforce. A federal registration on the Principal Register grants nationwide rights, legal presumptions of ownership and validity, the right to use the ® symbol, and stronger enforcement tools.

Q: What is the cheapest way to protect a phrase or slogan?

The cheapest way to begin protecting a phrase is consistent trademark use that creates common-law rights at zero government cost. For most businesses, the strongest and most cost-effective long-term protection remains a properly prepared federal registration with the USPTO.

Q: Should I rely only on common-law rights for my phrase?

For most growing or online businesses, no. Common-law rights are a useful and free foundation, but they are limited in geographic scope and more expensive to enforce. Federal registration is the standard for meaningful nationwide brand protection.

Q: How do I establish common-law trademark rights in a phrase?

To establish common-law rights you must (1) use the phrase as a trademark in commerce so that it identifies the source of your goods or services, and (2) when the phrase is descriptive, develop secondary meaning so consumers associate it with your brand. Proper use includes packaging, labels, website product pages, and advertising that clearly ties the phrase to your offerings.

Q: Does using the ™ symbol create trademark rights?

No. The ™ symbol does not create rights. It is simply a notice that you claim the phrase as a trademark. Actual common-law rights arise only from genuine use of the phrase as a brand in commerce.

Q: How far do common-law trademark rights in a phrase extend?

Common-law rights extend only to the geographic areas where you actually use the phrase and where consumers recognize it as identifying your goods or services. They do not automatically cover the entire United States.

Q: Can I stop someone in another state from using my phrase if I only have common-law rights?

Usually no. Because common-law rights are geographically limited, you generally cannot stop use outside the areas where you have established recognition. A later federal registrant can often expand nationwide while your rights remain frozen in your original territory.

Q: What evidence do I need to prove common-law rights in a phrase?

You must be able to prove the date, place, and manner of first use and continuous use. Strong evidence includes dated photographs of packaging or labels, website screenshots with URLs and capture dates, invoices or sales records linking the phrase to actual transactions, advertising materials, and any third-party references that associate the phrase with your business.

Q: Can I claim common-law rights in a common or descriptive phrase?

Yes, sometimes. A common or descriptive phrase may qualify for common-law protection only when it functions as a trademark and, where required, has acquired distinctiveness. For a complete explanation of phrase distinctiveness and federal registrability, see our guide to trademarking a phrase.

Q: What happens if someone else later files a federal trademark application for my phrase?

A later federal applicant who obtains a registration on the Principal Register can usually claim nationwide rights. Your earlier common-law rights remain valid only in the limited geographic areas where you can prove prior use and recognition. This is one of the primary risks of relying solely on common-law protection.

Q: Is a common-law trademark enough protection for an online or e-commerce business?

Rarely. Online sales and marketing typically create nationwide exposure, yet common-law rights remain geographically limited and harder to enforce. Most online businesses ultimately need federal registration for effective protection against copycats and marketplace enforcement (including Amazon Brand Registry).

Q: How long does it take to get common-law trademark rights in a phrase?

Common-law rights can arise as soon as you begin genuine trademark use in commerce. There is no government waiting period or approval process. However, building strong, enforceable rights (especially secondary meaning for descriptive phrases) usually requires consistent use over time plus good documentation.

About the Author and Why You Can Trust This Guide

About the Author and Trademark Expertise

USPTO-registered attorney Michael Kondoudis founded The Law Office of Michael E. Kondoudis to help clients navigate applications through the USPTO. Michael Kondoudis has over 25 years of professional legal experience specializing in intellectual property protection within the United States and internationally. As the Principal of The Law Office of Michael E. Kondoudis®, Michael Kondoudis has conducted 1,000s of trademark searches and filed 1,000s of trademark applications with the USPTO. Michael Kondoudis is also a former rocket scientist and holds the status of an Amazon #1 bestselling author on commercial trademark law.

The Law Office of Michael E. Kondoudis is an intellectual property law firm specializing in USPTO trademark applications. From our Washington, DC headquarters near the USPTO, we provide flat fee trademark registration services to clients from all 50 states.

The YNAT® Trademarking System and Core Principles

Michael Kondoudis is the official inventor of the proprietary YNAT® Trademarking System. The YNAT® Trademarking System powers the signature Trademarks Made Easy® methodology utilized exclusively by The Law Office of Michael E. Kondoudis®.

The Trademarks Made Easy® approach is explicitly built on four core business attributes:

Operational Efficiency — streamlined legal processes designed to minimize time, cost, and administrative friction.
Proactive Communication — clear, transparent, and predictive client communication at every stage.
Sustainable Growth — long-term client relationships centered on sustainable brand protection.
Measurable Value — practical, results-driven strategies that deliver tangible business assets

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Trademark Attorney-Client Privilege Disclaimer

Disclaimer: No Attorney-Client Relationship or Legal Advice

This content is for general informational and educational purposes only and does not constitute legal advice. Reading or interacting with it does not create an attorney-client relationship. A formal relationship is formed only through a signed engagement agreement. Reading, sharing, or interacting with this content does not create an attorney-client relationship.

Do not send confidential trademark concepts or brand names through comments, forms, or email on this site — unsolicited information is not privileged. Trademark rights depend on specific facts and jurisdiction. Past results do not guarantee future outcomes. Consult a licensed trademark attorney for advice on your situation.

Remember: I am an experienced trademark attorney. However, I am not your attorney.

Michael Kondoudis

For more than twenty years, Michael Kondoudis has been the go-to trademarking expert for businesses of all shapes and sizes. Michael is a USPTO-licensed trademark and patent attorney, educator, speaker, and author of the Amazon best-seller: Going From Business Owner to Brand Owner. He is also an authority trusted by national news media on major trademark stories.

Fun Facts: Michael is a member of the Bar of the U.S. Supreme Court and an actual rocket scientist (B.S. Astronomy and Astrophysics, Indiana University 1994).

www.mekiplaw.com

African American Trademark Serial Number: A Complete Guide

July 26, 2023 by Michael Kondoudis

By Michael Kondoudis, Small Business Trademark Attorney

This is our COMPLETE guide to the African American Trademark and the African American trademark serial number.

In this article, we’ll shed light on what trademarks are, the unique features of the African American Trademark, what it covers, and the African American trademark serial number.

So, if you need to learn about the African American trademark serial number and the African American trademark, then this guide is for you.

Let’s get started!

What Is A Trademark?

A trademark serves as an indicator that specific goods or services are associated with a particular company. In essence, it’s a brand’s way of claiming its identity. Common forms of trademarks include names, phrases, and logos. Trademarks help protect a brand’s integrity and reputation in the marketplace.

A trademark is a badge of origin.

What Is The African American Trademark?

The African American trademark is a registered trademark for this logo:

African American Trademark Serial Number 86979951

The African American trademark logo features a stylized outline of the “African” continent with four horizontal lines defining five horizontal bands or sections, with the word “AMERICAN” forming an arc above the outline and the word “AFRICAN” forming a concentric arc above the word “AMERICAN”.

The African American Trademark Serial Number

86979951. The U.S. Patent and Trademark Office (USPTO) assigned the African American trademark serial number 86979951.

When registering a trademark, the U.S. Patent and Trademark Office (USPTO) assigns a serial number to the application. In this case, the African American Trademark was given the serial number 86979951.

When Was The African American Trademark Filed?

December 29, 2014. The African American trademark application was filed with the U.S. Patent and Trademark Office (USPTO) on December 29, 2014.

When Was The African American Trademark Registered?

October 4, 2016. The U.S. Patent and Trademark Office (USPTO) granted the African American trademark on October 4, 2016.

What Does The African American Trademark Cover?

The African American Trademark covers beef, canned vegetables, chicken, and pork. These goods are in International Class 29.

Coverage of the African American Trademark

The scope of the African American Trademark extends to beef, canned vegetables, chicken, and more. As a registered trademark, the owner can take legal action against any infringing use of the trademark.

Who Owns The African American Trademark?

The owner of the African American trademark is African American Inc., a North Carolina-based food and beverage service company.

The owner of the registered trademark assigned African American trademark serial number 86979951 is African American Inc., a North Carolina-based food and beverage service company.

What is African American Inc.?

African American, Inc. is a company that specializes in providing quality food and non-food products to retail merchants and food service institutions across multicultural markets in the United States. Through their Foundation, they create educational, collaborative and funding opportunities with their partners to promote positive social change.

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Michael Kondoudis

Fun Facts: Michael is a member of the Bar of the U.S. Supreme Court and an actual rocket scientist (B.S. Astronomy and Astrophysics, Indiana University 1994).

www.mekiplaw.com

What is a Trademark: An EASY Guide

July 16, 2023 by Michael Kondoudis

Names, logos, and phrases are the most common trademarks. Trademarks protect brands.

By Michael Kondoudis, Trademark Attorney

This is our EASY guide to trademarks.

Have you ever wondered what a trademark is, what it protects, or how it can benefit your business? Do you need to learn what can be a trademark? This blog post answers these questions – and more.

If you need to learn about trademarks, then read on. This guide is for you.

Let’s get started!

CONTENTS

PART I: What is a trademark?

PART II: What is a registered trademark?

PART III: What can be trademarked

PART IV: What can’t be trademarked

PART V: The requirements for trademark protection

PART VI: Why you want a registered trademark

PART VII: How long does it take to get a registered trademark

PART VIII: Why you should work with a trademark lawyer

PART I: What is a trademark?

PART II: What is a registered trademark?

PART III: What can be trademarked

PART IV: What can’t be trademarked

PART V: The requirements for trademark protection

PART VI: Why you want a registered trademark

PART VII: How long does it take to get a registered trademark

PART VIII: Why you should work with a trademark lawyer

What is a Trademark?

There are many ways to define trademarks.

A trademark is a sign that distinguishes the goods or services of one company from those of another. A trademark can be a word, phrase, logo, image, or combination. Trademarks protect brands and businesses’ investment in their brands.

Trademarks are distinctive words, names, and signs used to identify and distinguish a company’s products from those of the competition. Trademarks are badges of origin.

A commonly used synonym for a trademark is brand name. For example, COKE and PEPSI are trademarks (brand names) for soft drinks while FORD and BMW are trademarks for automobiles.

Trademarks are more than just names, however. The most common trademarks are words, logos, and phrases.

A trademark identifies a product from a single source. Customers don’t always need to know the name of the source, but they can know that products with the brand come from a single source.

Trademarks represent and protect brands and are often indicated by the trademark symbols TM, SM, and ®️.

Learn exactly what the trademark symbols ®, TM, and SM mean — including the legal rules and common mistakes — in our Trademark Symbols Guide.

What is a Registered Trademark?

A registered trademark is an enhanced trademark that has been certified by the U.S. government and, comes with official legal ownership, nationwide legal rights, and prevents anyone else from registering anything even similar for your industry.

When you protect a trademark, you protect the brand that goes with it, along with all of the hard work and investment that you put into your brand. The very best way to protect a brand is with a registered trademark.

The United States Patent and Trademark Office (or “USPTO”) is the federal agency that registers trademarks.

Owners of registered trademarks are legally allowed to use the “circle r” or “®” trademark symbol.

Trademarks can last indefinitely so long as they are renewed on time.

How Do You Register a Trademark?

To register your trademark, you’ll need to file an application with the USPTO – the federal agency responsible for trademark registration. While the process can be time-consuming and may require expert guidance, it’s a crucial step in securing your brand’s identity and ensuring its success.

What Does a Trademark Do?

A trademark identifies the source of products and services, tells customers which products or services come from your business, and differentiates them from the competition. Trademarks are badges of origin and represent and protect brands.

Trademarks represent your brand and also protect it while helping maintain the integrity of your hard work and investment.

The Power of Trademarks

The strength of a trademark is its ability to:

• Identify the source of your products or services, communicating a sense of trust and dependability to your customers

• Establish a strong connection between your brand and the products or services you offer, enabling customers to recognize and choose your business over competitors

• Provide legal protection by discouraging competitor attempts to use similar names, logos, or designs that could potentially confuse customers or tarnish your brand image

What Can You Trademark?

Every element of your brand can be a trademark. The possibilities are almost limitless. The four most common types of marks are:

Names: usually your company name
Logos: your company logo or other graphic used to brand your business
Slogans: the catchphrase used to promote your business
Product Names: the unique name of your product

In most cases, brand names and logos are the cornerstones of most brands.

LEARN MORE: Guide to what can (and can’t) be trademarked

Other examples can include:

Clothing Brands
Company Names
Podcast Names
Blog Names
Band Names
Product Shapes
Webinar Names
YouTube Channels

Stop Worrying About Your Trademark

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New Applications – Legally own your trademark.

Office Actions – We can navigate the trademarking process at the USPTO.

Enforcement – Flex your trademark rights. Stop copycats.

What Can’t Be Trademarked

Already in use or too similar: If a mark is already in use or has a striking resemblance to an existing mark, it cannot be trademarked.

Generic descriptive words: You cannot trademark generic terms, as they cannot be exclusively linked to your brand or product.

Commonly used phrases or messages: Everyday phrases do not qualify for trademark protection. For example, you cannot trademark “Happy Birthday.”

Direct religious quotes and passages: Using sacred words or direct quotes from religious texts is forbidden when it comes to trademark protection.

Requirements for Trademark

getting your Federal trademark comes down to meeting the same four trademark requirement

No conflicts with other trademarks
Trademark distinctiveness
Use in commerce
The capability to be a source identifier

LEARN MORE: Guide to Trademark Requirements

Why You Want a Registered Trademark for Your Brand

The answer is simple. A registered trademark is the ultimate protection for any brand. There is no greater protection. That makes a registered trademark the best insurance against having to rebrand.

Here are just some of the reasons why:

Confidence. A registered trademark is an official confirmation that you own your trademark. Your brand will be yours as long as you use it.

Exclusivity. A registered trademark will prevent anyone else from registering it (or anything similar) in your industry. The USPTO is required to reject all future applications.

Legal Protections. A registered trademark comes with the immediate, exclusive, and nationwide right to use your mark in your industry with the backing of Federal courts to protect it.

Online Protections. A Federal trademark gives you enhanced protection for domain names and on social media platforms, along with access to Amazon’s brand registry.

Credibility. Only a Federal registration gives you the legal right to use the ® symbol, an attention grabber that tells the world that you take your business and brand. seriously.

They also:

make foreign registrations possible
enable counterfeit protection by Homeland Security at the border
can continue indefinitely

We make trademarks easy!

How Long Does It Take to Get a Federal Trademark?

The trademarking process takes about 14 months in most cases.

Remember: Registering your trademark is a complex procedure that involves your application moving through various stages. It is a Federal legal matter, and there are many factors that affect how long it takes to register a trademark. In fact, there’s no guarantee your trademark will ever register. This is why the U.S. Patent and Trademark Office recommends that applicants work with a trademark attorney.

According to the Wall Street Journal, you’ll increase your chances of success by up to 50% compared to applications not filed by a trademark lawyer.

Why You Should Work With A Trademark Lawyer

A lot of legal strategy goes into a successful Federal trademark application. An experienced trademark attorney can help save you time, money, and headaches as you navigate the process.

Here are a few of the ways:

1. The USPTO will not give you legal advice and cannot give you a break. If you file on your own, you’re really on your own. The USPTO cannot give you legal advice and can’t bend the rules for you.

2. Over 80% of all applications require a legal response. Most applications are initially denied because of all of the legal and procedural requirements. This often gets unrepresented applicants into trouble.

3. You’ll get legal and strategic advice about your trademark, your brand, and the best ways to protect them. We can help make sure that your mark is legally protectable, that your application is complete and accurate, and help ensure that you apply for the protection you need.

4. The U.S. Patent and Trademark Office strongly recommends it.

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Want To Protect Your Trademark?

If you want to make sure your name or logo is 100% yours so one can use it or take it from you, we should talk.

A lot of businesses trust us to protect their trademarks.

You don’t have to fully understand trademarks – just that you want to protect yours. We can sort out the rest!

Michael Kondoudis

Fun Facts: Michael is a member of the Bar of the U.S. Supreme Court and an actual rocket scientist (B.S. Astronomy and Astrophysics, Indiana University 1994).

www.mekiplaw.com

Who Owns A Trademark: An EASY Guide

July 16, 2023 by Michael Kondoudis

Every trademark application MUST name the correct owner and the USPTO severely limits correction of mistakes in ownership.

By Michael Kondoudis, Small Business Trademark Attorney

This is our EASY guide to trademark ownership.

Trademark ownership is critical to securing and maintaining trademark rights. If you get ownership wrong, you can lose your trademark. Ownership matters.

If you need to learn who owns a trademark, then read on. This guide is for you.

Let’s jump in!

CONTENTS

Part I: What is a trademark

Part II: Who can own a trademark

Part III: Who should own a trademark

Part IV: Who owns a trademark

Part V: What does it mean to own a trademark

Part VI: Why trademark ownership matters

Part VII: How to find out who owns a trademark

Part I: What is a trademark

Part II: Who can own a trademark

Part III: Who should own a trademark

Part IV: Who owns a trademark

Part V: What does it mean to own a trademark

Part VI: Why trademark ownership matters

Part VII: How to find out who owns a trademark

What Is A Trademark?

A trademark is a distinctive symbol, design, word, or phrase that that sets your products or services apart from those offered by other businesses. A trademark is your brand’s unique identifier, making it easily recognizable to your customers.

Who Can Own A Trademark?

Trademark owners come in many forms. People, organizations, and businesses can own a trademark. Some examples of potential trademark owners include:

• Individuals

• Partnerships

• S-Corporations

• C-Corporations

• Limited liability companies (LLCs)

• Sole proprietorships

• Clubs

• Trusts

• Non-profits

Trademarks can be owned by individuals, a partnership, an organization (such as charities), and businesses (such as corporations or limited liability companies). In fact, corporations and LLCs are some of the most common trademark owners.

The world of trademarks is vast and diverse – people, organizations, and businesses can all stake their claim to a trademark.

Can A Trademark Have Two Owners?

Yes, a trademark can have two owners (or more) when all of the owners jointly control the nature and quality of the goods or services offered under the mark (see below).

Who Should Own A Trademark?

A trademark owner should be the party (person, business, organization) that uses the mark and controls the nature and quality of the goods and services offered under the mark.

A trademark owner should be the party that applies the mark to their goods, uses it with their services, and controls the nature and quality of the products and services offered under the mark.

Always remember – the party who controls the nature and quality of the goods and services used in connection with the brand should be the trademark owner.

What Is Trademark Use?

What do we mean by “uses the mark”? Simply put, this refers to applying the mark to the goods they produce or using it in the sale or advertising of the services they perform.

Stop Worrying About Your Trademark

Schedule a Free Strategy Call

See How My Law Firm Can Help You Protect Your Trademark

New Applications – Legally own your trademark.

Office Actions – We can navigate the trademarking process at the USPTO.

Enforcement – Flex your trademark rights. Stop copycats.

Who Owns A Trademark?

A trademark is owned by the person, organization, or business that uses the mark to brand their goods or services and controls the nature and quality of the goods and services. The person or entity that uses a trademark and controls the quality of the goods or services under the mark owns it.

What Does It Mean To Be A Trademark Owner?

Being a trademark owner means that a party gets the exclusive right to use the mark in their industry and the right to stop others from using confusingly similar marks. Also, a trademark owner is the party responsible for controlling the nature and quality of the goods and/or services offered under the mark.

Being a trademark owner comes with unique rights and responsibilities. Owning a trademark grants you the exclusive right to use the mark in your industry, enabling you to differentiate your products or services from others. Furthermore, as a trademark owner, you hold the power to prevent others from using misleadingly similar marks that could harm your brand.

On the flip side, you are also responsible for controlling the nature and quality of the goods and services offered under the mark. This ensures that your brand maintains a consistent level of standard that consumers can rely on.

Why Is Trademark Ownership Important?

A trademark owner can sue for trademark infringement. Also, the trademark owner is responsible for using the trademark correctly to ensure that the mark stays enforceable. This is because the trademark owner is the party responsible for using the mark and ensuring the quality of the products and services they provide.

Why Does Accurate Trademark Ownership Matter?

A trademark application must identify the correct owner – by law. When an application misidentifies the owner, it must be rejected as a matter of law.

Example: The trademark owner is a corporation or an LLC. The trademark application must be filed in the name of the business – not the owner or corporate officer.

Also, the rules of the USPTO (“the United States Patent and Trademark Office”) prohibit corrections that change the owner.

Mistakes about ownership are some of the most common mistakes that do-it-yourself applicants make when trying to register their trademarks. This mistake can lead to the invalidation of a trademark application.

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How to Find Out Who Owns A Trademark

Conduct a trademark lookup to find out who owns a trademark. This lookup, which is sometimes called a “trademark search,” can be conducted online for free on the USPTO’s website at www.uspto.gov.

Learn More: How to Do a Trademark Lookup – The COMPLETE Guide

Why Should You Own a Trademark?

As a business owner, you should be the one to own the trademark for your goods or services. By owning the trademark, you have the exclusive right to use it within your industry, and you can protect your brand by preventing others from using marks that are too similar. So, no one can register your mark for their business and take it from you!

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Michael Kondoudis

Fun Facts: Michael is a member of the Bar of the U.S. Supreme Court and an actual rocket scientist (B.S. Astronomy and Astrophysics, Indiana University 1994).

www.mekiplaw.com

How To Buy A Trademark: An EASY Guide

July 5, 2023 by Michael Kondoudis

You can buy trademarks and buying a trademark can often be a savvy business move – if you understand the legalities.

By Michael Kondoudis, Small Business Trademark Attorney

This is our EASY guide to buying a trademark.

Buying an existing trademark can be the best and fastest route to trademark success. But buying a trademark requires more than the ability to identify a good deal. The process of buying a trademark can be a bit tricky and requires specific information about trademarks and the U.S. Patent and Trademark Office.

If you need to know about buying a trademark, then read on. This guide is for you.

Let’s jump in!

CONTENTS

Part I: Can You Buy a Trademark?

Part II: How to Buy a Trademark

Part III: What is a Trademark Assignment?

Part IV: What is a Trademark License?

Part V: Buying a Trademark: Step-by-Step

Part VI: Do You Need a Lawyer’s Help?

Part I: Can You Buy a Trademark?

Part II: How to Buy a Trademark

Part III: What is a Trademark Assignment?

Part IV: What is a Trademark License?

Part V: Buying a Trademark: Step-by-Step

Part VI: Do You Need a Lawyer’s Help?

I. Can You Buy A Trademark?

Yes, you can buy a trademark. The law treats trademarks like any other physical property; they can be bought, sold, licensed, and even mortgaged! So, trademarks can be bought and sold, like a car, jewelry, and real estate.

The answer to can you buy a trademark is yes!

II. How To Buy A Trademark

There are two options to buy a trademark. You can buy all or part of it.

Option 1. Assignment: A trademark assignment (see below) transfers the entire ownership of a trademark. This could happen while your trademark application is examined at the U.S. Patent and Trademark Office or after your trademark has been registered.

Option 2. Licensing: A trademark license (see below) “buys” a right to use a trademark by temporarily transferring some or all of the rights associated with a trademark. The ownership of the trademark, however, does not change.

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Enforcement – Flex your trademark rights. Stop copycats.

III. What Is A Trademark Assignment?

A trademark assignment is a legal document that transfers the ownership of a trademark from one party to another. This type of transfer can occur when a trademark owner sells their business, merges with another company, or simply wants to transfer the rights to a trademark to another party.

The assignment document must be in writing and signed by both the assignor (the current trademark owner) and the assignee (the new trademark owner). It should include details about the trademark, such as the registration number, the goods or services associated with the mark, and any licensing agreements that may be in place.

Once the trademark assignment is completed and recorded with the appropriate trademark office, the new owner has all the rights and responsibilities associated with the mark, including the right to prevent others from using the mark without permission.

It is important to note that a trademark assignment does not affect any existing contracts or licenses that may be in place for the trademark. These agreements must be reviewed and addressed separately to ensure that the transfer of ownership does not violate any existing legal obligations.

IV. What Is A Trademark License?

A trademark license is a legal agreement between the owner of a trademark (the licensor) and another party (the licensee) that allows the licensee to use the trademark in connection with certain goods or services.

The license will specify the terms and conditions under which the licensee can use the trademark, including the duration of the license, the territory in which the mark can be used, and any quality control standards that must be met.

In exchange for the right to use the trademark, the licensee may pay the licensor a fee or royalties based on sales or other usage metrics.

A trademark license allows the owner of the mark to generate revenue from the licensing of their trademark while still retaining ownership and control over the mark.

It is important to carefully review all terms and conditions of a trademark license agreement before signing to ensure that both parties fully understand their rights and obligations.

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V. Buying a Trademark: Step-by-Step

These are the steps to take when buying a trademark to ensure a successful transaction:

Step 1: Do a trademark search.

Step 2: Negotiate a purchase agreement.

Step 3: Update the trademark registration at the USPTO.

Step 4: Enforce the trademark.

STEP 1: DO A TRADEMARK SEARCH

Before you proceed with buying a trademark, it’s important to conduct a search to make sure the trademark you want to purchase is available. The United States Patent and Trademark Office (USPTO) keeps a record of the ownership of all registered trademarks on its website.

STEP 2: NEGOTIATE A PURCHASE AGREEMENT

Once you’ve confirmed that the trademark is available for purchase, the next step is to negotiate a purchase agreement with the current owner. This agreement will include the terms and conditions of the sale, such as the purchase price, payment terms, transfer of ownership, and any warranties or representations. It’s important to have an experienced attorney review the agreement to ensure that it protects your interests.

STEP 3: UPDATE THE TRADEMARK REGISTRATION AT THE USPTO

After the purchase agreement has been signed and the purchase price has been paid, the current owner will need to transfer ownership of the trademark to you. This involves filing a trademark assignment or license with the USPTO. This document transfers ownership of the trademark from the current owner to you.

STEP 4: ENFORCE THE TRADEMARK

After buying a trademark, it’s important to enforce it by protecting it from infringement or unauthorized use by others. You can do this by monitoring the marketplace for any potential infringement, sending cease and desist letters, and taking legal action if necessary. It’s important to work with an experienced attorney to ensure that your trademark is adequately protected.

VI. Do You Need A Trademark Lawyer To Buy A Trademark?

Most authorities agree that working with a trademark lawyer is a good idea when purchasing a trademark. A trademark lawyer can provide guidance on the legal implications of the purchase.

In addition, a trademark lawyer can provide guidance on negotiating and drafting a purchase agreement that protects your rights and interests and ensures that the transfer of ownership is properly documented and recorded with the U.S. Patent and Trademark Office.

Hiring an attorney to complete the trademark assignment is a wise decision, as there can be a lot of “magic language” or specific legal wording that goes into the agreement. A professional will help ensure the process is done correctly and with your best interests in mind. Overall, working with a trademark lawyer can help ensure that the purchase of a trademark goes smoothly and that your investment is protected.

Do You Want To Buy A Trademark?

If you are serious about buying a trademark, you should consider working with an experienced trademark lawyer.

A trademark lawyer can help you:

decide whether to assign or license the trademark,
confirm the seller’s ownership,
understand what you’re buying,
prepare the appropriate legal documents to facilitate the proper transfer of rights,
record your purchase with the U.S. Patent and Trademark Office.

Take the Next Step – Buy That Trademark

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Take the Next Step & Buy That Trademark!

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Michael Kondoudis

Fun Facts: Michael is a member of the Bar of the U.S. Supreme Court and an actual rocket scientist (B.S. Astronomy and Astrophysics, Indiana University 1994).

www.mekiplaw.com

An EASY Guide to Trade Dress

July 5, 2023 by Michael Kondoudis

When customers recognize the look and feel of your product (or service) and associate it with you, you may have a protectable Trade Dress, which can be a powerful trademark.

By Michael Kondoudis, Small Business Trademark Attorney

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This is our EASY guide to Trade Dress.

Brand recognition is important. Businesses need their customers to be able to easily identify their products and services. Using distinctive trademarks (names + logos) is one way to build recognition. Another way is to use trade dress.

Trade dress is often overlooked, but it can be a powerful tool to help you distinguish your products and services from the competition.

In this blog post, we’ll dive into the ins and outs of trade dress and explain why it’s crucial for business owners to understand this trademark law concept.

Let’s jump in!

CONTENTS

Part I: What is Trade Dress?

Part II: What Qualifies as Trade Dress?

Part III: Requirements for Trade Dress

Part IV: Examples of Trade Dress

Part V: Condensed Summary of Trade Dress

Part VI: Should You Work With a Trademark Lawyer?

Part I: What is Trade Dress?

Part II: What Qualifies as Trade Dress?

Part III: Requirements for Trade Dress

Part IV: Examples of Trade Dress

Part V: Condensed Summary of Trade Dress

Part VI: Should You Work With a Trademark Lawyer?

I. ABOUT TRADE DRESS

What is Trade Dress?

Trade dress refers to the overall appearance or design of a product or service that distinguishes it from others in the market. It encompasses a variety of elements, including packaging and labeling, product configuration, flavor, color, and even the design of a restaurant or retail store. Essentially, trade dress helps identify a brand and creates a unique image in the minds of consumers. By protecting these elements, companies can prevent others from unfairly capitalizing on their intellectual property and ensure that their brand and reputation remain intact.

Trade dress helps customers know which company is the source of a product or service from the look and feel rather than a name or logo.

The features and characteristics of a product or its packaging, such as design, shape, colors, and patterns, can be trade dress. The ambiance and décor in which a service is rendered can be trade dress. These elements combine to form a distinctive look or feel that distinguishes a product and represents a brand.

Companies can register their trade dress with the US Patent and Trademark Office to obtain legal protection and prevent others from using confusingly similar trade dress in the marketplace.

Trade dress is a type of trademark protection.

Definition of Trade Dress

Trade dress refers to the visual appearance and overall image of a product or service, including its packaging, design, graphics, colors, shape, and other visual elements. It is a type of intellectual property that is protected under trademark law and is used to identify and distinguish the product or service from those of other companies. The purpose of trade dress is to create a unique and recognizable brand identity that helps consumers associate the product or service with a particular company or source.

Trade dress is a legal protection for the way a product looks and feels or the ambiance or décor in which a service is rendered – when it distinguishes the product or service from the competition.

The Purpose of Trade Dress

Trade dress identifies and distinguishes the source of a product or service through “look and feel” rather than trademarks (names + logos).

Trade dress prevents competitors from copying a company’s unique branding elements beyond names and logos.

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New Applications – Legally own your trademark.

Office Actions – We can navigate the trademarking process at the USPTO.

Enforcement – Flex your trademark rights. Stop copycats.

How Is Trade Dress Different From Trademarks?

Trade dress protects the look and feel of a product or service, while trademarks protect the names, words, logos, and phrases used to brand a product or service. The difference between trade dress and trademarks is what they protect.

The main difference between trade dress and trademarks is that trade dress protects the overall look and feel of your product, while trademarks protect specific words, logos, or other symbols associated with your brand.

Trade dress and trademarks both protect brands, just in different ways.

II. WHAT QUALIFIES AS TRADE DRESS

What Can Be Trade Dress?

Features that contribute to the commercial look and feel of a product, its packaging, or a service can be trade dress, including:

1. Shape: The shape of your product or packaging can significantly impact its overall appearance and make it more distinguishable.

2. Color: A distinct color scheme can help your product stand out on store shelves and create a lasting impression on your customers.

3. Design: A unique and eye-catching design can enhance your product’s appeal and contribute to its recognizability.

4. Size: Playing with different product or packaging sizes can set your offering apart from other similar products in the market.

5. Configuration: How the different components of your product are arranged can contribute to its distinctive visual appearance.

6. Packaging: Creative and unique packaging can catch consumers’ attention and help reinforce your brand identity.

7. Decor: Distinctive décor that results in an atmosphere that customers associate with a business or service and help reinforce a brand identity. Example: The atmosphere of an Apple® store or a Taco Bell® restaurant.

What Is Not Trade Dress?

Products and Services

Trade dress does not protect a product or service. Trade dress protects the distinctive appearance of the product or service that represents your brand.

Functional Elements

The trade dress cannot perform any function that is essential to the use of a product or to render a service. Trade dress protects the aesthetic aspects that set a product or service apart from the competition. The trade dress must be nonfunctional.

Common Elements

Trade dress must be distinctive so that it identifies a brand. Consumers do not recognize common elements (those shared between competitors in an industry) as representing a brand. Consumers see the trade dress and automatically associate it with a particular company or product.

III. REQUIREMENTS FOR TRADE DRESS

Trade Dress Requirements

Trade dress is protectable when it is (1) non-functional and (2) distinctive. Essentially, trade dress should be seen as a way to establish a brand identity or image, rather than as a functional aspect of a product or service.

Non-Functional

This means that the design or shape of a product cannot serve a practical, functional, or utilitarian purpose. Instead, it must be primarily for aesthetic or decorative purposes.

Distinctive

This means that the design, shape or décor is not ordinary. Instead, it must be recognizable by consumers as a reflection of a company brand and as an indication that a product or service comes from a particular source.

To be protectable, trade dress must be (1) non-functional and (2) distinctive.

IV. EXAMPLES OF TRADE DRESS

Trade Dress Examples

Some examples of trade dress are product packaging, product design configurations, product color, a restaurant’s décor, and the design of a retail store.

Trade Dress Examples In The Marketplace

• The distinctive red and white label on a bottle of Coca-Cola (product packaging)

• The unique shape and design of a Porsche 911 sports car (product design configuration)

• The distinctive pink color or Owens Corning fiberglass insulation (product color)

• The trade dress of a retail store, such as the distinctive decor, signage, and layout of a Starbucks coffee shop (restaurant decor)

• The unique design and layout of an Apple Store, including the glass storefront and minimalist aesthetic (store design)

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Examples of Trade Dress

The following examples of protected trade dress:

The Coca-Cola Curvy Bottle

The Coca-Cola bottle has a distinctive and recognizable contour shape.

Apple Stores

Apple stores are known for their class storefronts and minimalist aethetic, both of which reflect the Apple brand.

Hershey Chocolate Bars

Hershey’s chocolate bars are packaged in foil wrappers with brown outer wrappings.

John Deere Tractors

John Deere tractors are painted in a distinctive and recognizable green and yellow combination.

Chevrolet Corvettes

The unique shape and design of Chevrolet’s Corvette sports car is both distinctive and recognizable.

What Is The Most Famous Trade Dress?

The Coca-Cola bottle’s shape is widely considered one of the most famous trade dress marks worldwide. This iconic shape has been a federally registered trademark for over four decades, since 1977, to be exact. The history of the Coca-Cola bottle dates back even further, to 1916, when it was first used. This trademark’s design is easily recognizable, and it has become an incredible symbol of the brand’s identity, cementing its place in pop culture and history.

V. CONDENSED SUMMARY

Trade dress is a type of trademark that can protect the overall appearance of a product or company. It can include features like color, shape, design, packaging, and more. The purpose of trade dress is to help consumers distinguish one product from another and to identify the source of the product. In order for trade dress to be eligible for protection, it must be nonfunctional and have acquired a secondary meaning among consumers. Keep reading to learn more about trade dress and how it can be used to protect your business.

Trade dress is a type of trademark that can be used to protect the overall appearance of a product or company. It can include features like color, shape, design, packaging, and more. The purpose of trade dress is to help consumers distinguish one product from another and to identify the source of the product. In order for trade dress to be eligible for protection, it must be nonfunctional and have acquired a secondary meaning among consumers.

Like other trademarks, trade dress is protected by state and federal law. trade dress can also be registered with the US Patent and Trademark Office (USPTO). Registering your trade dress gives you additional legal rights and makes it easier to enforce your trademark rights if someone infringes on them. If you have not yet registered your trade dress, you can still assert common law rights in it. However, registering your trademark makes it easier to prove infringement in court and can give you greater damages if you win your case.

If someone infringes on your registered or unregistered trade dress rights, you may be able to sue them for trademark infringement. To win an infringement lawsuit, you will need to show that (1) you have valid trade dress rights in the product or service; (2) the defendant’s use of the trade dress is likely to cause consumer confusion; and (3) you have been harmed as a result of the infringement. If you are successful in your lawsuit, you may be entitled to damages including profits lost due to the infringement, punitive damages, attorneys’ fees, and an injunction against further infringement.

VI. DO YOU NEED A LAWYER?

Do You Have to Use a Trademark Attorney to Protect Trade Dress?

No, but the U.S. Patent and Trademark Office strongly recommends that all applicants work with a trademark attorney.

Why Should You Work With a Trademark Attorney?

Filing a trademark application with the USPTO (U.S. Patent and Trademark Office) starts a federal legal process that can get complicated, expensive and confusing. Working with a trademark attorney can make the process go faster, smoother, and result in more protection. Remember, the trademarking process is much more than just filling out online forms (that’s the easiest part of the process). The USPTO will only grant your application after meeting all of its many legal and procedural requirements.

Also, studies show that working with a trademark attorney can increase your chances of successfully trademarking your brand by over 50%.

Take the Next Step and Protect

Your Trade Dress

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Michael Kondoudis

Fun Facts: Michael is a member of the Bar of the U.S. Supreme Court and an actual rocket scientist (B.S. Astronomy and Astrophysics, Indiana University 1994).