TM ... I'll bet you've seen that before. You probably also know that it stands for trademark. But does seeing the TM mean that that mark is registered? And what do you do when you're ready to establish a trademark? There are certainly no shortage of web profiteers who will offer to help you with the process, and tell you the last thing you need is an attorney - because after all, they'll cost a fortune, and they're only needed if you've got something really complex, right? Wrong.
Consulting an attorney is exactly what you should do when you're considering trademark registration. After helping a number of clients with intellectual property matters, I have come up with three things you must know about trademarks. And if after reading them, you've still got questions (or still want help), it's time to call that attorney.
1. A trademark might not really be what you're looking for.
Copyrights and trademarks are frequently confused, and many of the self-help legal services offered online are unable and/or unwilling to help people distinguish between the two - and happy to charge you for the mistake if you make the wrong filing. The information offered here is simply a basic explanation of the two types of intellectual property - but if you want a definitive answer, contact a lawyer with your facts. A distinction between the two with regard to your specific facts shouldn't cost you a dime. But as a starting point:
Copyright - refers to the rights that you have to "original works of authorship", including the rights to reproduce those works, prepare derivative works, distribute copies of that work, perform the work publicly, etc. Copyright protects only the form of expression and not the subject matter of it. For example, if you write a paragraph describing a building, your copyright protection does not extend to alternate descriptions of the same building, or someone actually building it based on your description.
Trademark - refers the use of words, names, symbols etc. in the trade of goods to identify the source of those goods and to distinguish them from other similar goods. A service mark is the same thing - except used for services rather than goods. The name and symbols for auto manufacturers are a good example. When you see the BMW blue and white field on a car, you know it was manufactured by Bavarian Motor Works, and not made by GM (thank goodness). Trademarks are used to prevent others from selling similar goods/services under the same or confusingly similar marks, but not from selling those same good/services under a clearly different mark.
So, for example, if you're planning a clothing line using a number of original designs, the name and logo of your clothing line is going to be a trademark and the designs themselves enjoy copyright protection.
2. Name searching and registration are not difficult and can be accomplished online - and are cheaper than you think.
As before, there are many willing to strip you of your money if you don't know how to perform a search of the US Patent and Trademark Office database to ensure your proposed trademark isn't already registered to somebody else for the same goods/services. For example, LegalZoom will charge you $199.00 for the search, which you can accomplish on your own, online in about 30 seconds. In fairness to LegalZoom, though, they do bind the results and send you a canned essay on how to interpret the results.
The USPTO maintains a free database of all of all trademark & service mark filings, and offers free, unlimited searching of that database online (the Trademark Electronic Search System - TESS) located at http://tess2.uspto.gov/bin/gate.exe?f=tess&state=4009:v6vk4q.1.1
You can use their Basic Search function, type in your proposed mark, and literally get results instantaneously. So, keep your 200 bucks, and save yourself the 5-7 business days LegalZoom will make you wait just to print your results out and staple them together.
Filing, while a little more difficult and not free, can also be accomplished online, via the TEAS or Trademark Electronic Application System (http://www.uspto.gov/teas/index.html). What's more, filing online will afford you an immediate serial number and an email copy of your application - whereas if you file by mail, it will take 2-3 weeks just to get a filing receipt and even longer to get a serial number. You can use the serial number of your application to track its progress online. The online application is a little more challenging than the name search - and may take you a couple of hours, but there is a free tutorial at the site which walks you through step-by-step (http://www.uspto.gov/teas/eTEAStutorial.htm). The fee for the filing is either $275 or $325 based on the nature of your filing and application. Many sites will gladly charge you $150-$250 on top of the filing fee to fill out the web form for you - and will require you to give them most of the same information - so how much time are you really saving?
3. You do not need a monitoring service, and not everything that looks official is official.
As you may have guessed, the USPTO records are public records - which is good because it means you have free access, but also bad because everyone else has access, too. So as soon as you file your mark for registration, everyone knows it. So who cares? Well, there are a lot of businesses who target new filers with ancillary services that they don't really need, and do so with very official looking papers.
A related note from the USPTO:
You may receive unsolicited communications from companies requesting fees for trademark related services, such as monitoring and document filing. Although solicitations from these companies frequently display customer-specific information, including USPTO serial number or registration number and owner name, companies who offer these services are not affiliated or associated with the USPTO or any other federal agency. The USPTO does not provide trademark monitoring or any similar services.
Such companies typically charge a service fee in addition to applicable USPTO fees. In many instances, applicants and registrants have mistakenly believed that the USPTO has issued these communications or that these companies are affiliated with the USPTO. Complaints about such companies or communications may be made to the Federal Trade Commission, at http://www.ftccomplaintassistant.gov/.
You can file documents electronically directly with the USPTO using forms available through the Trademark Electronic Application System (TEAS). Only applicable fees required by law, and no service fees, are charged. You can monitor status directly at no cost through Trademark Application Registration Retrieval (TARR). For general information on filing and maintenance requirements for trademark applications and registrations, including required fees, please consult the USPTO website.
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The marketplace has gotten a lot more entrepreneurial over the past year, and there are small businesses starting up everywhere. Now, more than ever, the protections offered by a small investment in registered trademark and copyright now can save you big later. Unfortunately, this reality can also cost you far too much up front, if you're not properly informed. The information above is a great place to start, but asking a few questions of an attorney, to find out whether or not it makes sense for you to use them, shouldn't cost you anything, and is the best thing to do if you're wondering about trademark.
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