What’s the Difference Between a Trademark and a Patent?
Chris: A patent is for an invention you want to protect. A trademark is for the name you use to sell a product. That’s the basic difference but there are also conceptual differences. A patent will protect and keep other people from using your inventive idea where a trademark gets developed from actual use. You have to use the trademark in interstate commerce to develop the right to the mark. A trademark attorney in the 586 area code will get you started. You will need use in interstate commerce.
Q: What's a service mark?
Chris: A service mark is how you market a service that's not directly related to a product. Lets’ say we have a carpet cleaning service in Michigan. They might put a catch phrase on the side of their van so when they're driving around metro Detroit, people see and call them. There's no real product when you’re cleaning someone's carpet. Or let’s say they have a secret formula to their carpet cleaning solution. They might file for a patent on the secret formula and then call that secret carpet cleaning formula something catchy that relates to cleaning carpets.
Q: Cost to Register a Trademark?
Chris: A trademark is a lot less expensive than a patent. A patent takes a fair amount of time and effort to develop the specification claims and things like that. You're looking at roughly two to three billable hours for us to do the entire process from discussing the mark with you in a short interview, getting the information we need from you to prepare the application and ultimately filing the mark. There are some trademark office-related fees as well. You have to pay a fee for each class you register in. Those are some of the details a trademark attorney or advisor in Metro Detroit can discuss in an initial interview.
Q: Are there types of words, phrases, logos or similar stuff that cannot be registered?
Chris: There are a lot of different categories we have to watch out for, but the key thing is you need a mark that's not directly describing what you're doing. Let’s say you’re a golfer using Callaway clubs. They have a driver they call a Big Bertha. Everyone thinks that's a Callaway club because they've heard it so much. Before they started calling it a Big Bertha, if someone said, "Hand me your Big Bertha", they would be laughed at. Now it's the name for their specific driver. Callaway calls it the “Big Bertha”, folks remember it and it can be registered as a trademark. “Great big golf driver” is going to be very difficult to register because it's so descriptive of what's going on with the product.
Q: How Long to Get a Trademark Registered?
Chris: Trademarks go a lot faster than patents. We usually hear from the trademark office in roughly six months after we file. You have a six-month time period to respond to the trademark office. You can use the whole six months if you like or if you're in more of a rush you can file quickly and get it registered right away. Roughly it’s a year once we start to finish.
Q: Do I have to be using that mark to apply?
Chris: There are two different types of marks. There’s an actual use where you have to write down the date on the application when you first used the product or service in interstate commerce. If you haven't used it yet, but you want to see if it’s able to be registered as a trademark, you can do what's called an “Intent to Use” application.
Q: Do I Need an Attorney?
Chris: That's always a personal choice, but it's usually better to get an attorney. We know the ins and outs of these things and can potentially avoid many pitfalls that would hurt you down the road. There are affordable trademarks lawyers in Michigan
Q: What if I find somebody else is using the mark but they haven't registered it? Can I go ahead and attempt to register it?
Chris: It comes down to analysis of who used the mark and when. One of the neat things about registering a trademark federally is, as long as you were using it in two states, that counts as interstate commerce. You could potentially register a mark and not know someone in California was using the mark. If they ended up using the mark after your registration, then for sure you could make them stop. There might be some overlap and you may have had your registration somewhat in parallel with theirs. You may block them geographically from expanding. You may call them to cut a deal, something like that. This happens a lot with franchises and expansion.
Q: How does this relate to protecting an Internet domain?
Chris: A registered trademark is a very powerful tool when it comes to protecting your domain name. If you develop the goodwill in your mark to the extent you get your mark registered and you didn't get around to filing for your domain name, you can file a dispute to extract that domain name from whoever filed. What happens a lot of times is people file a bunch of domain names that are close to yours. It's like an attack type and trademark law doesn't like that. They're literally going to let you walk in and take over that domain without having to pay the fees these companies want to get from you. There's no way they can steal your domain name if you have a federal mark. A federal mark is very powerful in being able to protect that domain name.
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