There is much talk about intellectual property around apps, like trademarks and copyright. Here are some trademark basics to help you. Trademark registration is not cut-and-dry and this list is not exhaustive but hopefully this will get you started.

What is a trademark?

A trademark or “mark” is the words, pictures or symbols that you put on your goods or services. Examples of trademarks include names of products like M&Ms® and symbols like the McDonald’s® Golden Arches. The name of your company, the name of your app, and your logo are all things that can be trademarked.

What is the difference between trademark and copyright?

Books, music, movies, software, photographs, paintings, plays, and architectural works are copyrighted, not trademarked. In the app world, your app’s name, logo, or logo can be trademarked, and your code and animation is copyrighted.

How do you know if something is trademarked?

If you would like to show that you are claiming a mark as your own, you can use ™ at the end of your mark, like ABC™. The ™ symbol can (and should) be used as soon as you start considering the trademark process. Even if you are turned down for registration of your trademark, you can use the ™ symbol.

The U.S. Patent and Trademark Office (USPTO) has a process by which people or companies apply for and are granted registered trademarks. (See more on that below.) If USPTO approves your trademark registration, you can use the ® symbol, like ABC®.

How do you check to see if a mark is already registered?

The USPTO maintains a list of all federally registered trademarks. You can search this database at http://tess2.uspto.gov/bin/gate.exe?f=tess&state=4806:63919z.1.1.

Do I have to register my trademark in order to protect my brand?

No. If you use your mark in connection with your goods or services and you use it in a continuous and deliberate way, you may have a common law trademark over the mark. The legal standard to prove you have a common law trademark is more rigorous than if you register a mark, but it does allow you protection.

While there is no requirement that you register your mark, there are advantages to doing so. Most importantly, registration of your mark gives you legal precedence in use of that mark, meaning that you have a legal right to use that mark over anyone else’s use. It also gives notice to others that you have claimed the use of that mark. If your business has or wants to build consumer loyalty, the protection of your mark can protect your right to use a mark to identify your brand.

However, registering a trademark takes considerable time and costs over $300 even if you file the application yourself, so you need to think about whether this is a cost that is worth it to your business. Further, depending on the circumstances it can take six months, or even several years, to fully register a trademark and that trademark needs to be renewed periodically.

If you are confused about whether or not you should register your mark, it is helpful to read the materials available at the USPTO website and to speak to an intellectual property attorney.

Where do I register my mark?

The USPTO allows you to register your trademark online through the Trademark Electronic Application System (TEAS). Go to their website at http://www.uspto.gov/trademarks/index.jsp, where you can find a link to the application and an entire section for first time filers, including videos and FAQs. These are great tools and will be able to answer most of your questions.

Do I file just the words in my mark or the words with design elements?

A standard character mark is just words, with no font, pictures or color. If you register a standard character mark, you have a trademark over those words regardless of how they look. “ACT” is an example of a standard character mark; no matter how the mark is written, it is still protected.

A stylized/design mark is a mark that incorporates some sort of design. This is an example of a stylized mark:

You can file for both a standard character mark and a stylized/design mark but they have to be separate applications so that will cost more.

What are “categories”?

The trademark registration application requests that you file your mark in at least one category.

You can search a listing of all the categories through the Trademark Electronic Search System (TESS) found at http://tess2.uspto.gov/netahtml/tidm.html. You can file under multiple categories but it costs $100 for each additional category under which you file.

These categories are important because they allow you to limit your mark to the correct industry. For example, Ritz crackers and Ritz hotels can use the same name; no one is confusing the hotel with the snack food.

If you can’t figure out which category your mark belongs in, you can ask the USPTO to add a category that fits you or you can file a TEAS Form which lets you write in a description of your category.

When can I file my trademark application?

In order to register a trademark, you must be using that trademark. If you are using it in commerce that the U.S. Congress may lawfully regulate, like commerce between the states or between the U.S. and another country, you may file a “use in commerce” application. Examples of use in commerce are marks appearing on goods that are sold or transported in commerce or advertising of services rendered in commerce. In other words, if your app is already available for sale, you would file a “use in commerce” application.

If you are not currently using your mark in commerce—your app is not yet available for sale or download—as described above but you intend to, you can file an “intent to use” application. This will give you the same legal precedence as the “use in commerce” application as long as you file the application before the mark is actually used by another party and, once you put the mark into actual use, you complete the registration process by filing an additional form and paying an additional fee.

What information should I give the USPTO?

All the information you submit to the USPTO goes into the public record. That includes your name, phone number, email address, etc. Remember that you need to keep this information updated so that the USPTO can contact you regarding your application.

Please note that I am not your lawyer and this post is not meant to offer you legal advice. This blog is meant only as a shortened version of the guide which is provided on the USPTO website. If you have any questions or concerns about this process, you should seek legal advice.