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To be eligible for trademark registration, you have to be using a mark (likely your business name) to identify your brand to the public. And you have to use that mark in interstate (more than one state) commerce. Finally, you also need to have a distinctive mark.
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Mark That identifies Brand To The Public
First determine if there is any name, logo, symbol, or sound that you are using to identify your brand to the public. Consider some examples:
- Nike uses both the famous swoosh and the block lettering spelling out “Nike” as their company trademark;
- The Simpsons trademarked both the words “The Simpsons” and the “D’OH!” sound that Homer makes;
- Tiffany’s jewelry has trademarked their name and the Tiffany blue color they use on their packaging.
If you are using something to identify your brand to the public you meet this qualification. This is true even if that “something” is your own personal name (think of Coco Chanel, Louis Vuitton, or Vera Wang).
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Mark Used In Interstate Commerce
Using a mark in "interstate commerce" is simply asking whether you are using it, in business, across state lines. Here are some examples:
- Your business is online in your home state of Indiana and you have a customer in another state;
- You have a retail store in Missouri that ships your products to a retail store in Illinois;
- You work from home in Kansas and sometimes travel to other states to meet with clients.
If your business operates across state lines and you use your mark in those interactions, you are engaged in interstate commerce. This also means that you have a mark you can register.
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Intent-To-Use Application
If you are not currently using the mark in interstate commerce, you may still have something you can trademark. The USPTO allows marks to be registered for future use. Do you have a legitimate (or “bona fide” as the USPTO calls it) intent to do so in the next year? Then you can file an "intent-to-use" application.
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Protect your business with our complete legal subscription service, designed by top startup attorneys.
- ✅ Complete Legal Toolkit
- ✅ 100+ Editable Contracts
- ✅ Affordable Legal Guidance
- ✅ Custom Legal Status Report
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