If you are in business, you probably already have a trademark even if you don't know it. Knowing the difference between the categories of intellectual property is essentially to protecting your ideas. And since trademark is generally the most common, it is a good place to start.
Generally, a trademark distinguishes products or services as unique and associated with a particular creator, business or person. It can be a company name or a product name that distinguishes it from those made by others, or any other distinguishing characteristic of a product or service.
Often a trademark arises without the owner realizing it because it does not have to be registered or filed with any government agency to be protected. Simply conducting business or selling products under an exclusive 'mark' or name, or with a unique and exclusive characteristic will give rise to a trademark. Importantly, that exclusive use of a unique mark can entitle to the owner to prevent or preclude others from using it also. This can be true even if the oft-seen ™ notation is not used in association with the mark.
Registered trademarks on the other hand, designated by the ® notation, are only applicable to those trademarks registered and recognized by the USPTO. These trademarks are given greater protection than unregistered trademarks and can even allow the owner to protect them internationally. In contrast the unregistered trademark is only enforceable in the geographical area or market where it is used in association with unique and distinguishable goods. In other words, a common law trademark could be used numerous times by multiple people without any infringement as long as the operate in different cities, states or geographical areas. Infringement is typically tested by whether or not the two trademarks are colorfully similar or will cause confusion by consumers as to the source of the goods or services. No likelihood of consumer confusion exists when two goods with the same or similar trademarks don't compete in the same area.
Similar trademark protection is allowed for services and service providers who offer unique and distinctive services. This is referred to as a service mark and can be designated with the â„ notation. Service marks are generally more difficult to come by as often competitive services are more likely to be similar enough to be common.
So, if you already offer unique products or services under a name distinguishing you from the competition, you likely already have an enforceable trademark. The least you could do is slap that ™ all over your products, websites and marketing materials. A great place to start is to search available resources for competitors' business names in the yellow pages, business directories and the local internet search providers. Likewise, search for product names on the internet to find if your products' names are unique either nationally or within a region to merit trademark protection. Once you find that you have a trademark, protect it on all your business materials, keep it consistent across all of your marketing materials and websites and be prepared to notify potential infringers of your trademark rights.
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