4 March 2026
As counsel to various businesses, I often get asked questions such as, what is a Trademark? What is Copyright? How are they different? Which of these is good for my business? How do I obtain Trademark and/or Copyright protection for my products or services?
I have tried to answer these questions below. Hopefully, this will serve as a starting point for businesses who need protection for their goods and/or services.
1. What is a Trademark?
A trademark is any word, name, logo, slogan, design, sound, color, or trade dress that identifies the source of your goods or services and distinguishes them from others . Its purpose is to prevent consumer confusion by signaling that a product or service comes from you. Examples include a brand name (e.g., “ACME”), a stylized logo, or a product packaging design that customers recognize as yours . Trademarks protect brand identifiers—not the product itself—so that competitors cannot pass off their offerings as yours by using confusingly similar marks.
2. Trademark vs. Copyright: Know the Difference
Trademarks protect source identifiers used in commerce—brand names, logos, slogans, and related branding trade dress—so consumers can identify where goods or services come from. Copyright, on the other hand protects original works of authorship—such as marketing copy, photographs, website content, software code, videos, and graphics—fixed in a tangible medium. In short: trademarks protect brands; copyrights protect creative expression. For example, your logo artwork may be protected by copyright as a graphic design, while the same logo also functions as a trademark when used to identify your goods or services in the marketplace.
3. Requirements for Federal Trademark Registration
To obtain a federal trademark registration, one needs to apply for a Trademark by filing a Trademark application with the US Patent and Trademark Office. For the USPTO to allow a Trademark the mark ins question should meet several criteria:
A. Distinctiveness (The Strength Spectrum)
The mark must be capable of identifying a single source. Marks fall along a spectrum
• Fanciful or arbitrary: Invented words (e.g., Exxon) or common words used unrelatedly (e.g., Apple) are inherently strong.
- Suggestive: Hinting at qualities (e.g., Netflix) are also inherently registrable.
- Descriptive: Describing an ingredient, quality, or characteristic (e.g., Best Buy) generally require proof of “secondary meaning” before registration.
- Generic terms: Common names for the goods/services (e.g., The Pizza Shop) cannot be protected.
B. Non-generic and Non-functional
The mark cannot be the generic name of the goods/services, and trade dress cannot be purely functional. If a design feature is essential to use or affects cost or quality, it is generally not protectable as a trademark.
Example: You can trademark a unique purple handle for a hammer, but you can’t trademark the ergonomic shape of the handle if that shape is required for the hammer to work well.
4. The “Likelihood of Confusion” Test
The USPTO also considers whether your mark is likely to be confused with another similar sounding markl
Likelihood of confusion asks whether consumers are likely to believe that two marks used on related goods or services come from the same source The USPTO assess factors such as:
- Similarity of the marks in appearance, sound, meaning, and overall commercial impression.
- Relatedness of the goods or services and trade channels.
- Strength of the prior mark (distinctiveness and marketplace recognition) .
- Evidence of actual confusion.
So, how does the USPTO decide if your name is “too close” to someone else’s? They look at the “commercial impression”.
- Sound and Sight: “ACME” and “AKMEE” might look different, but they sound identical, which creates a high risk of confusion.
- Relatedness: If both brands sell athletic footwear through the same online channels, the risk of a lawsuit is high.
- Consumer Sophistication: Are you selling $50,000 industrial machines (where buyers are very careful) or $2 candy bars (where buyers make split-second decisions)?.
5. Advantages of Federal Trademark Registration
Why the Federal Registration is Worth the Investment
While you have basic rights just by using a name, a Federal Registration offers a “Shield and Sword” for your brand:
Here are some of the benefits of filing for a Trademark with the USPTO.
- Nationwide Priority: Rights to use the mark nationwide in connection with the listed goods/services.
- Legal Presumptions: Presumptions of validity, ownership, and exclusive right to use the mark.
- Public Notice: Appearance in the federal database puts others on notice .
- Use of ® Symbol: Ability to use the federal registration symbol.
- Border and Platform Tools: Eligibility to record with U.S. Customs to help block counterfeit imports.
6. Practical Tips for Businesses
- Clear Early: Conduct clearance searches before investing in branding. A typical clearance search is inexpensive compared to having to change your brand name if you cannot obtain Trademark protection.
- Choose Strong Marks: Fanciful, arbitrary, or suggestive marks are easier to protect .
- Use Consistently: Display the mark consistently and keep records of use.
- Maintain and Monitor: Police the marketplace to prevent weakening through misuse or genericide.