This is what you need to do to get the simplest form of trademark.
1. Choose a mark,
2. Use the mark in connection with an inter-state commercial transaction, and
3. Pay $275 to the USPTO when filing an application.
It doesn’t need to be a name. It could be anything that distinguishes a product or service, including a word, phrase, logo, symbol, design, or even a composite of all of them. For the simplest trademark, a standard character word is used. This means the word or words may be spelled in any font.
You will need a unique word or combination of words, and not all words are equally valuable. Some words are generic, and don’t really identify the product. As a trademark applicant, you should strive to find a mark that will immediately inform a potential consumer about the origin of the product or service. This is called the distinctiveness of the mark.
The most distinctive name in my opinion is Kodak. Many people also site Xerox. These are excellent names because they are invented words that have no other meaning than identifying the associated company. Invented words are considered “fanciful” in trademark law and are the most protected.
The next highest level of distinctiveness is “arbitrary”. These marks contain a word that has nothing to do with the associated goods or services. The most prevalent example is Apple, used in the sale of computers.
“Suggestive” marks hint at the product being sold, but requires imagination, thought and perception to figure out the connection. An example of a suggestive mark is 7-Eleven, as the convenience stores provide services from 7 AM to 11 PM. Another example is Greyhound buses. Supposedly Greyhound offers transportation services similar to the speed of a racing dog.
“Descriptive” marks merely describe the goods or services associated. I have worked on dozens of trademark applications, and this is the most common issue. Entrepreneurs have trouble here because they want to choose a name that lets customers know what they are offering, but at the same time they are inadvertently weakening their potential trademark.
There are a couple ways to get descriptive marks registered for protection at the USPTO. One way is to establish secondary meaning. This basically means that the public has come to identify the mark with a particular company over time. IBM stands for International Business Machines, and merely describes the products that helped start the company, typewriters and adding machines. Over time, people began to identify the name solely with products created by IBM.
Finally, there are “generic” marks. The USPTO does not allow these. Generic means the mark is the common descriptive name of the product. You are not allowed to register a trademark for Bicycles, and try to prevent everyone else from using the mark in the sale of bicycles.
USPTO Trademark law is federal, and requires an inter-state transaction. There are also many state trademark laws, but federal trademarks are much more prevalent.
You cannot register a trademark that you have not used in commerce. Otherwise, wealthy companies would register marks for every word in the dictionary and prevent new companies from using the marks. There are some nuances to this rule, but the inter-state sale is most common.
You may apply for a mark before use, if you want to reserve the name for later, but you will need to actually use it before it becomes registered.
This may seem obvious, but you must apply for the mark at the USPTO. This includes a $275 fee for online filing for each Class, one of forty-five different categories of goods and services. The applicant must choose one or multiple classes, and also describe the goods or services more specifically within that class.
The application also requires a specimen, which is an image of the mark in use. A picture of a mark on a box, receipt, or web site is often sufficient.
Applications take several months to process for various reasons. The USPTO may issue office actions requiring amendments, or may issue rejections that must be overcome with arguments. Also, other interested parties may interfere with the application. Typically, if there are no issues with the application, you will have a mark within six months of filing.