Speaker 1: Hi everyone. Welcome back to All Up In Yo' Business. I'm attorney Aiden Durham with 180 Law Co. in Colorado and today we're going to talk about one of the questions that I get all the time, a conversation that I have frequently with my clients. Should I get a trademark registration for my business name or my logo? Before we dive into that, if you're new to All Up In Yo' Business, welcome. Please subscribe if you haven't already. You can click that little bell so you get notified anytime I post a new video and check the description for links to additional information and resources including a link to download my free brandish trademark guide where you're going to learn a lot more about trademarks and trademark registration. And while I am a lawyer, I am not your lawyer. The stuff I talk about in this video should not be taken as a substitute for actual legal advice. If you have questions about any legal matter including trademark registration, you should consult with a lawyer. Before we get into the should I do a trademark for my name or my logo, let's talk about what the differences are. What does it mean to get a trademark registration for your name versus getting one for your logo? When we do a trademark registration for a business name, this is considered a standard character mark. It's a combination of letters or numbers, standard characters without any kind of reference to design, stylization, font, color, anything like that. It protects the name just as it is regardless of how it actually appears. The rights, your trademark rights, lie in the wording of the mark and not any kind of design or font or stylization. And so when you have a trademark registration for a standard character mark, you can use it in whatever kind of style or design you want to. You can use it in a logo however you want and it's still going to be protected because your trademark registration doesn't care about the design. It just cares about those words or letters or numbers. So we're typically going to get the kind of broadest rights and protection with a standard character mark. And we can also feel free to change up the design. Maybe if our business name is in our logo, we can change the logo up without affecting our rights in the name itself. A logo, on the other hand, is considered a design mark or a special form mark. And registering a design mark protects that specific design, including color potentially, maybe the fonts that are used, the stylization, the visual representation is what's protected. And the same standard is applied to both. When you're registering a trademark with the USPTO and in trademark infringement cases, the standard that's applied is the same to both standard character marks and design marks. It's likelihood of confusion. If we see two trademarks side by side, is there a likelihood that consumers might get them confused? That applies generally regardless of whether we're talking about a standard character mark or a design mark. So now that we have an idea of what it means to have a trademark registration for a standard character mark versus a design mark, let's get to the big question of which one should I do? Should I get a trademark registration for my business name or my logo? Of course, this probably isn't a big surprise. The answer, you guys, is it depends. There's no one correct answer for everybody. It's always going to vary and depend on your circumstances, blah, blah, blah, blah, blah, all this different stuff. Ideally, best case scenario though, you would do both. The best thing you can do if you're asking, should I trademark my name or my logo? Both. Get a trademark registration for your business name as a standard character mark and for the design mark, your logo. But of course, that's not always possible. Trademark registration costs money. It costs time. You can't always just do all of your trademarks. Sometimes you have to prioritize. And in those cases, generally speaking, I lean more towards the business name being the higher priority. So that standard character mark is usually number one priority. There's usually some higher value in name recognition versus familiarity of a logo. Businesses, you know, we refer to businesses by their names usually, not by the logo that they use. And then in practice, since a standard character mark protects the name regardless of how it looks, you can change up the design of your logo freely without affecting the rights that you have in that standard character mark. And, you know, not always, but businesses are usually less likely to change their name. It certainly happens. There are situations where businesses change their names, but it's more common, more frequent that a business will update its logo or change the logo altogether. That doesn't happen so much with a business name. And having that trademark registration for your business name is going to give you the broadest bit of protection because no one will be able to use that same name or a similar name for the same goods and services. That, of course, would be considered likelihood of confusion. And since the name itself is protected, nobody else can use that name in their logo or design either because our registration doesn't care about the design. The name itself is protected. Versus if we do a trademark registration for just our logo and pretending the logo doesn't have any words, doesn't have our business name as a part of the logo, if we've just got like an icon or a design to it, if we do a trademark registration for that, that's what's going to be protected. So nobody else can use that same or similar design for the same goods and services, but your business name is kind of exposed. You don't have that same level of protection for your business name now. And if you change up the design, that could affect your trademark rights because now you have a different trademark. You have to usually apply for a new trademark registration for that new version of the logo. So for most instances, the name is going to be the higher priority if it's one or the other. I guess this isn't always the case. Maybe your business is like the business equivalent of the artist formerly known as Prince. Remember when Prince used to just go by that symbol and didn't really have a name? Maybe your business is like that. Maybe your business just operates under a symbol and it has no name. I guess in that instance, the logo would be higher priority because who cares about the name? You want to be recognized by the logo. But that isn't always the case, so usually we're going to lean more towards the name. This of course then brings up the question of, well, what if my logo includes my business name in it? What if my logo is a stylized writing of my business name? We call this a composite mark when there is a literal element to it and some design. When the USPTO is back there evaluating our applications, the kind of fundamental rule is that trademarks have to be compared in their entirety. So when the examining attorney back there at the USPTO is looking at your trademark application and comparing it to all these other trademark registrations and stuff, they're supposed to compare the marks in their entirety. They're not supposed to dissect the marks. Take this one little element separate from the others, viewed in their entirety. But at the same time, greater weight is often given to the dominant portion or the dominant element of the mark. If there's one feature or one element of the trademark that kind of stands out more, the examining attorneys might give a little bit more weight to that when comparing it to others. And often, not always, but often wording in a trademark is going to be considered that dominant element because when we refer to businesses, we usually use the words, the names. We refer to them by name. So not always, but usually kind of the wording is considered the dominant feature. But again, that's not always the case. So in that sense, a trademark registration for a logo that also includes your business name is going to give you some protection for the name. But at its core, the protection really is still for that specific design. So it's better than no trademark registration for the name at all, but it's not really as good as a trademark registration for the name as a standard character mark. So when we get a trademark registration for our business name as a standard character mark, nobody else can use that same name for the same goods or services, even in another kind of design. When we have a trademark registration for our logo, no other business, nobody else can use that same design for the same goods and services. When we have a trademark registration for a name that is in a logo, nobody can use that same name with that same design. But somebody could theoretically use that same name in a different design or use that design on its own without the name, because again, they're supposed to be compared in their entireties. So overall, to summarize, best practice ideally is to get a trademark registration for your business name as a standard character mark and one for your design mark, your logo. Two separate trademark applications, two separate registrations, but ideally we want both. If that's not possible, usually we're going to prioritize the name over the logo. Like I said though, that's not always the case. It's always going to vary and depend. So the best thing you can do is consult with a trademark lawyer, someone who can help you decide which one's going to be more important for you and your business. That's all for this episode, folks. If you learned a thing or two, give me a thumbs up, won't you? Subscribe if you haven't already, click that little bell so you get notified when I post a new video, and you can check the description for links to additional information and resources, including that link to download my free brandish trademark guide. Now when we're talking about trademark registrations for logos, often the next question that comes up is, well, should I trademark my logo in color? Should I claim color as a feature of my trademark or not claim color? Perhaps you didn't even know that that was a thing. It is, and luckily I've got a whole video all about color in trademarks and claiming color versus not claiming color in your logo. You can check it out right here and I'll meet you over there. Thank you so much for watching. I'm Aiden Durham and I'll see you next time.