Many business owners know generally that it’s possible to apply for a trademark, but they don’t know the details, or whether a trademark application would be a good idea for their business. Here are a few common questions.
A trademark is nothing more than a signifier of your goods or services. This includes trade names, logos, slogans, product names, etc. By owning a trademark, you can prevent others from using related signifiers—thus protecting against competitors who want to use a similar name to confuse consumers or tarnish the business. So, a trademark generally becomes more valuable the bigger your business becomes—and the more people who have an incentive to use your name or logo to steal part of the market.
A Kansas trademark is less expensive than a federal one, and subject to a less stringent examination. However, a Kansas trademark is only enforceable within the state of Kansas. A federal trademark, meanwhile, is enforceable nationwide.
Federal trademark registration is generally more advantageous, especially for businesses that sell products online. If you are granted federal trademark registration, there is no advantage in also applying for state registration.
Yes. Trademarks protect a business’s signifiers in the marketplace. Copyrights are owned by a person who makes a creative work, and allows that person to control the copying and distribution of that creative work. Copyrights are automatic and need not be registered.
Trademarks and copyrights do intersect sometimes. For example, a logo may serve as a trade signifier and also constitute a creative work. But unless your business is in a creative field, it is likely that trademark law is more important to you than copyright law.
As of 2024, Kansas charges a $40 filing fee. The United States Patent and Trademark Office charges a $250 base filing fee, plus $100 for each class of goods or services in which your trademark is registered. There are additional fees required every five years to extend registration, which total several hundred dollars.
Hiring an attorney to file a trademark for you comes with additional fees. Those fees are generally in the range of $500 for a state trademark and $1,000 for federal.
A business name is more likely to be eligible for a trademark the less connected that name is with the nature of the products or services.
At one extreme, a trade name that is generic or simply a description of a quality of the business is not eligible for trademark registration. For example, “Jones’s Tire Shop” is not trademarkable because it simply describes a tire shop owned by Jones. You can’t prevent other people from calling their tire shop a tire shop, and you can’t prevent other Joneses from using their last name for their business.
However, a trade name that bears no relation to the nature of the business can be trademarked. Apple has a trademark because the company doesn’t sell apples; it sells technology. Of course, this means that it can only stop other tech companies from using the name “Apple”; it can’t stop fruit sellers from using that name.
Not all business names fit neatly into one of these two categories. A business name can also be trademarked if it is suggestive—implying the nature of the product without saying so outright. For example, Jaguar has a trademark because the animal is fast, and Jaguar sells fast cars. The name suggests a quality of the product in the minds of consumers; but if Jaguar were called “Fast Car Company” instead, that would be too on-the-nose, and thus not a registrable name.
The line between a protectable, suggestive name, and a non-protectable, descriptive name, can be hazy. Consulting a trademark attorney can be useful to get clarity on which side of the spectrum you are on.
For logos, it’s a bit simpler: as long as your logo is not confusingly similar to another registered logo, it will generally be accepted for registration.
A trademark can be filed on a business name or a logo. For example, McDonald’s has trademarks on the word “McDonald’s” and on the golden arches. But you should never file for those trademarks in the same application. If you do that, you can only stop people who are using both the trade name AND the logo—not one or the other. But if you have separate trademarks for each, you no longer have that problem.
You can still use your trade name. The only way you can be stopped from using your trade name is if it infringes on someone else’s trademark. Additionally, you may still have some trademark protections, but proving it in court will be harder and costlier in the absence of registration.
If your business is brand new, you can still file for a trademark. In that case, you’d apply for an “intent to use” trademark, indicating that while you’re not using your trade name in the marketplace yet, you plan to do so.
You can apply for trademark registration at the following links:
Federal: Trademark Center (uspto.gov)
State: Kansas Secretary of State | General Services | Trademark/Service Mark Information (ks.gov)
Or, better yet, you can call one of our attorneys at Adams Jones.
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