Do you understand the difference in trademarks and copyrights and know how to use each of them properly?  Although both protect ownership of intellectual property, they are not interchangeable.  If you are a designer, artisan, or seller, it is important for you to learn the differences between trademarks and copyrights, how to protect your own intellectual property, and how to avoid infringing upon the rights of others, which is a violation of federal law.

This guide is devoted to trademarks; be sure to see my article on copyrights as well (Copyright FAQS for Designers, Artisans, and Sellers).

What is intellectual property?

Contrary to what some people on eBay obviously believe this term to mean (one seller vows to hold intellectual property rights although he/she is not an intellectual but an artist), intellectual property refers to an object that is the product of the mind or intellect, as born out in Wikipedia’s definition of the term: “In law, intellectual property (IP) is an umbrella term for various legal entitlements which attach to certain types of information, ideas, or other intangibles in their expressed form. The holder of this legal entitlement is generally entitled to exercise various exclusive rights in relation to the subject matter of the IP. The term intellectual property reflects the idea that this subject matter is the product of the mind or the intellect, and that IP rights may be protected at law in the same way as any other form of property.”

Why is knowing about trademarks important?

Do you have a brand name or logo that you use consistently to identify the source of items you design, make, and sell on eBay? If so, this may be your most valuable business asset ... and the only way to legally claim your ownership of a name or logo and to protect them from use by others is via federal trademark.

If this sounds a bit scary or daunting, read on. The purpose of this guide is to answer your questions about trademarks in simple, straightforward language while providing online resources for more information and how to apply for registration.

What is a trademark?

Perhaps you already have a clear understanding of when a trademark is appropriate, but if you don’t, here’s the official definition from the United States Patent and Trademark Office (see their site at uspto.gov): "A trademark is a word, phrase, symbol or design, or a combination of words, phrases, symbols or designs, that identifies and distinguishes the source of the goods of one party from those of others."  A trademark is created and used primarily for commercial purposes.

We see trademarked names and symbols many times each day, so I won’t waste your time with a list of examples. However, I do want to point out that ofttimes a company will choose to trademark both their name and a symbol, such as Microsoft has done for msn and the accompanying butterfly. We know they’re registered trademarks because the symbol ® follows each of them (see the banner at msn.com).  A trademark that either isn't registered or for which registration is pending is designated with a ™ symbol.

People often think a name is copyrightable. It’s not. Names are composed of a word or a combination of words and are, therefore, protected by trademarks, not copyrights. Please see my guide on copyrights for more information.  (Copyright FAQS for Designers, Artisans, and Sellers)

Please note also that a trademark applies to goods, and that a service mark (denoted SM) identifies and distinguishes the source of a service rather than a product. Trademarks and service marks are also called simply marks.

Must I register my mark for it to be effective?

The answer, which surprised me, is no. According to the USPTO, legitimate use of a mark can establish your right to it. However, there are definite advantages to owning a federal trademark registration, one of which is "the ability to bring an action concerning the mark in federal court." For more advantages, see the USPTO site.

Can I use the trademark symbols without registration?

If you can claim rights to a mark, then you can use the "TM" (trademark) or "SM" (service mark) designation without registration to alert the public to your claim. However, according to the USPTO, "you may use the federal registration symbol ® only after the USPTO actually registers a mark and not while an application is pending. Also, you may use the registration symbol with the mark only on or in connection with the goods and/or services listed in the federal trademark registration."

How do I know if I can claim rights to a mark?

From the USPTO’s main trademarks page, you can click on Search under the gray bar on the right side to perform a simple search for your mark. However, the USPTO issues this warning: "After searching the USPTO database, even if you think the results are ‘O.K.,’ do not assume that your mark can be registered at the USPTO. After you file an application, the USPTO must do its own search and other review, and might refuse to register your mark."

Let’s say another artisan, designer, or seller is using the same mark as you, also without registration, and has been doing so for a longer period of time. If you choose to register your trademark, one of the things the USPTO will do is notify the public of your intent. If the other person comes forward and proves longer usage, your registration of the mark will probably be denied.

During its review, the USPTO will look at registered marks that look and/or sound like yours. If the similarities are very close, again your registration may be denied.

How do I file for a trademark application?

You may use the Trademark Electronic Application System, which is available within the USPTO site to file your application directly over the Internet, which is the preferred method. You can also file a paper application via mail or hand delivery. See the USPTO site for addresses.

Do I have to hire an attorney?

No, but the USPTO warns that if you choose to prepare and submit your own application, "you must comply with all requirements of the trademark statute and rules." I don’t know about you, but I find that statement a bit intimidating. It makes me think I’d be far better off with an attorney. A simple Internet search yielded numerous results for attorneys who specialize in trademark registration, most of whom offer free consultation. You might also want to read the article at registeringatrademark.com/trademark-lawyer-role.shtml concerning why you should use an attorney.

What does trademark registration cost?

Based on the USPTO’s schedule, trademark registration fees begin at $275. A trademark attorney can give you a better estimate of the total cost of all fees, including his/hers.

How do I protect my rights to my mark?

As already stated, you may use the trademark (TM) or service mark (SM) symbol to identify and distinguish the source of your product or service at any time – with or without registration or while registration is pending. The TM symbol is accessible via your font’s character map. Just hold the ALT key down and type 0153 using the number keys on the right side of your keyboard (press Num Lock first), then let go of the ALT key and the ™ will appear on your screen. I could not find the SM symbol in any character map, but you can create it or the TM symbol using superscript (via Format, Font, Position, Superscript in a WordPerfect document; or via Format, Font, Effects, Superscript in a Word document).  This format will not allow me to provide the html code exactly as you would type it, but if you know anything about html, you shouldn't have a problem if you know the code is sup.

However, before you start using either symbol, you should first perform a search for your mark on the USPTO site. An Internet search could also prove beneficial in determining whether someone else may already have a legitimate claim to the name or phrase you are using or planning to use.

Because I have experience with registering copyrights and trademarks, I thought I knew all about them, but I learned several new things while researching this article.  If you found it helpful, please take a second to click the YES button below. Thanks for taking the time to read my guide.