How to get a trademark for my logo and brand name.
I'm entertainment business attorney Gordon Firemark, and this is asked and answered, where I answer your questions so you can take your career and business to the next level.
Stick around for my response.
A web visitor wrote in:
I have created a Logo with a generic phrase for my apparel company, with a design that indicates just what it means by utilizing a letter as part of the graphic. I would like to use this both nationally and internationally as soon as make sure that I secure the trademark for it how do I go about getting the trademark registered?
He goes on to ask me to Suggest the proper or best business structure to maximize profit, minimize liability and protect my assets from taxes and judgements, so he will have the most latitude to operate his business on a global scale with minimal risks.
Well, this is a great, and complex question.
First off, a trademark is… A distinctive word, symbol, or phrase that's affixed to goods or services in commerce as an indicator to identify their source or origin. Trademarks are Brands… Just like the brands that used to be burned into the hides of cattle to identify the ranch they came from.
You acquire trademark rights by actually using the mark in interstate commerce to sell goods or services.
Trademarks protect only against others using the same or confusingly similar marks in the same class of goods and services.
So, if you have a trademark for a particular brand of medical device, you probably can't prevent the same mark being used for a line of shoes, or as a title for a TV series…
Now, because we are talking about what the person describes as a “generic phrase” it's probably not distinctive enough for trademark registration just by itself.
But, the inclusion of a stylized letter and distinctive design might make it registrable as a logo design.
Now, the process isn't that hard. Nowadays, we do the applications online, and it's a step by step process. But it can be tricky because how you complete the application can have a big impact on whether or not the application gets approved. You might, for example, need to disclaim certain aspects of the mark, like the generic phrase in our readers’ situation. Or, selecting the right kinds of specimens of use to ensure maximum coverage and protection. It's also possible to go too narrow or too broad in the description of goods and services and risk being underwrote the, or possibly losing your mark later if you're discovers to have overstated the scope of your use of the mark.
The best way to ensure your trademark gets registered, and you get all the benefits and protections, is to have a lawyer prepare the application for you. Those of us who do this a lot have learned about all the problem areas, and have a handle on the best practices to get things done right.
My experience is that folks who do it themselves have their applications rejected more often, and then, unfortunately have to hire me to fix the problems they encounter. That usually costs as much or more than they'd have paid me to do the registration in the first place.
Your trademarks, your brands, may someday be the most valuable assets your business owns. So, it makes sense to invest a little bit now to protect them, when doing so is relatively easy. Rather than paying a lot to clean up messes later.
So, what's the proper or best business structure to maximize profit, minimize liability and protect assets from taxes and judgements?
Well, there are several kinds of legal structures that can help on this. The most common, and most established is the corporation, which provides insulation from liability for shareholders. But corporations come with some administrative hoops you need to jump through, and they have to pay taxes separately, so income can sometimes be taxed twice.
Sub chapter S corporations are for small, closely held companies, like family owned enterprises, and similar, where there are a small handful of shareholders… These corporations can be taxed like a partnership, where profits pass through directly to shareholders, so that double taxation doesn't happen. But these corporations also have the administrative hoops I mentioned before.
An LLC offers most of the advantages of corporations, but can be taxed as a pass through entity, and don't have the same administrative hoops, but they’re not as well established forms of entities, and can have other tricky aspects.
The bottom line is, I just can't give a general answer here. Every business is different, so you need to consult with an experienced business attorney (like me) who can help evaluate the situation and advise you accordingly.
Getting this stuff right is important, and it's always best to handle these things as you're starting up, so you don't wind up having to backtrack, or unwind transactions later on when your structure changes.
Invest a bit now, so you don't overspend on fixes later.
And that’s going to do it for this video…
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See you next time!
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