Product names are not protected by copyright; instead, they are protected by trademarks. A trademark legally safeguards a brand name, logo, or slogan used to identify goods or services, preventing others from using similar marks that could confuse consumers.
To protect your product name, you need to follow a structured process to register it as a trademark.
Understanding Product Name Protection: Trademark vs. Copyright
It's a common misconception that product names are copyrighted. Understanding the distinction is crucial for proper legal protection:
- Trademark: Protects brand identifiers like names, logos, slogans, and sounds that distinguish goods and services of one party from those of others. For example, "Coca-Cola" for beverages or the Apple logo for electronics.
- Copyright: Protects original works of authorship, such as books, music, art, software code, and architectural designs. It covers the expression of an idea, not the idea itself or a product name.
Therefore, for your product name, you will pursue a trademark.
Steps to Trademark Your Product Name
Securing a trademark for your product name involves a systematic approach to ensure its uniqueness and legal protection.
1. Develop a Distinctive Product Name
The first step is to create a unique and memorable name for your product. The stronger and more distinctive a name is, the easier it is to trademark and protect.
Names fall into different categories regarding their distinctiveness, from strongest to weakest:
- Fanciful: Invented words with no meaning (e.g., "Kodak"). These are the strongest.
- Arbitrary: Existing words used for unrelated products (e.g., "Apple" for computers). These are also very strong.
- Suggestive: Hint at the product's nature without directly describing it (e.g., "Coppertone" for suntan lotion).
- Descriptive: Directly describe the product or its features (e.g., "Sharp" for TVs). These are generally difficult to trademark unless they acquire "secondary meaning" through extensive use and recognition.
- Generic: Common terms for products (e.g., "Car" for a vehicle). These cannot be trademarked.
A unique and strong name is fundamental, as it defines your brand identity and market presence.
2. Conduct a Thorough Trademark Search
Before investing time and resources in an application, it's vital to perform a comprehensive search to ensure your chosen name isn't already in use or too similar to an existing mark. This step helps avoid potential infringement issues and increases your application's chance of success.
Your search should include:
- United States Patent and Trademark Office (USPTO) Database: The primary federal database for registered and pending trademarks.
- State Trademark Databases: Some businesses register marks only at the state level.
- Common Law Uses: Businesses may have rights to names simply by using them in commerce, even without formal registration. This includes checking business directories, online searches, and domain names.
Consider engaging a professional trademark attorney to conduct a thorough search, as they can identify potential conflicts that a basic search might miss.
3. File Your Trademark Application with the USPTO
Once you've confirmed your product name's availability, the next step is to submit your application to the USPTO. The application requires specific information and adherence to legal guidelines.
Key aspects of filing include:
- Applicant Information: Details about the individual or entity applying.
- Identification of Goods/Services: A precise description of the products or services your name will cover, chosen from an international classification system.
- Filing Basis:
- Use in Commerce: If you are already using the name in business. You will need to provide a "specimen" showing how the mark is used on your product or in connection with your services (e.g., product packaging, website screenshot).
- Intent to Use (ITU): If you plan to use the name in the near future but haven't started yet. You will need to provide a specimen later, once use begins.
- Filing Fees: Non-refundable fees are required per class of goods/services.
The application must be accurately completed to avoid delays or rejections.
4. Monitor and Respond During the Application Process
After filing, your application undergoes examination by a USPTO attorney. This process can take several months.
During this period:
- Examination: A USPTO examining attorney reviews your application for compliance with trademark law, checks for conflicts with existing marks, and ensures the goods/services are properly classified.
- Office Actions: If the attorney finds issues (e.g., likelihood of confusion with an existing mark, descriptiveness), they will issue an "Office Action." You must respond to these actions within a specified timeframe, often with legal arguments or amendments to your application.
- Publication for Opposition: If your application is approved, it will be published in the Official Gazette. This allows third parties who believe they might be harmed by your registration 30 days to file an opposition.
- Registration: If no opposition is filed or if it's overcome, your trademark will be registered, and you'll receive a registration certificate.
It's crucial to diligently follow up on your application and respond promptly to any communications from the USPTO to ensure the successful registration of your product name.
