How do trademarks work? What startup founders should know

What does a trademark protect?

A trademark protects a word, phrase, logo, design, or even a sound or color that identifies the source of goods or services. Its purpose is to prevent consumer confusion about who is behind a product.

Protection is tied to the goods or services you actually offer. Two companies can use the same word for unrelated products, like Delta for airlines and Delta for faucets, because customers aren’t likely to confuse them. The question is always whether consumers would think the products come from the same source.

Do I need to register my trademark?

Not to have rights. In the US, using a mark in commerce creates “common-law” rights, but only in the geographic area where you actually use it. Federal registration gives you nationwide priority dating back to your filing date, a legal presumption that you own the mark, the right to use the ® symbol, the ability to record the mark with US Customs to block counterfeit imports, and access to statutory damages against counterfeiters.

You can use ™ with any mark you claim, registered or not. Use ® only after the USPTO registers the mark, and only for the goods and services covered by the registration.

How strong is my name?

Trademark law ranks names by how distinctive they are. Invented words (like Kodak) and arbitrary words used in an unrelated context (like Apple for computers) are the strongest. Suggestive names, which hint at the product without describing it, are also registrable.

Descriptive names, which simply describe the product or a quality of it, are refused registration on the main (Principal) Register unless you can show customers have come to associate the name with your company, which usually takes years of use. A descriptive name can go on the Supplemental Register in the meantime, but that gives much weaker rights. Generic terms can never be trademarks. If you can choose, pick a suggestive or arbitrary name.

How do I search for conflicts?

Start with a basic web search, app store search and domain search for your name and close variations. Then search the USPTO’s free Trademark Search tool (which replaced the old TESS system in 2023) for similar marks in related classes. Look for marks that sound alike, look alike or mean the same thing, not just exact matches.

Before you invest in a brand, have a lawyer run or review a full clearance search, which also picks up state registrations and unregistered marks in use. See How Do I Avoid Trademark Infringement When Choosing a Name for My Startup?

Can I use a name another company already uses?

Sometimes. If the other company is in an unrelated industry and customers wouldn’t connect the two, both marks can usually coexist. The risk rises as the names get closer, the products get more related, and the other mark gets more famous. Very famous marks get broader protection against dilution even for unrelated products.

In a borderline case, the two companies can sign a coexistence agreement that defines how each will use its mark. The USPTO gives these agreements weight when examining an application.

Should I file a use-based or intent-to-use application?

If you’re already selling under the name, file a use-based application with a specimen showing the mark in use. If you haven’t launched, file an intent-to-use application. It reserves your priority as of the filing date, and you then file a statement of use (or request extensions in six-month increments) once you launch. Most pre-launch startups file intent-to-use.

What does it cost and how long does it take?

The USPTO restructured its fees in January 2025. There’s now one base application instead of the old TEAS Plus and TEAS Standard options.

Most startups file in one to three classes. Using the USPTO’s pre-approved descriptions of goods and services avoids the $200 surcharge.

Expect roughly 10 to 14 months from filing to registration for an application that goes through without problems. Intent-to-use applications take longer, because registration waits until you file the statement of use. An office action or opposition adds months.

What if I get an office action?

An office action is the examining attorney’s letter raising problems with your application, such as a likelihood of confusion with an existing mark, a descriptiveness refusal, or a goods description that needs fixing. You have three months to respond, and you can get one three-month extension for a fee. Missing the deadline abandons the application. Many office actions are procedural and easy to fix. A likelihood-of-confusion refusal needs a real legal argument or a coexistence agreement.

What if a similar mark is published for opposition?

Before registration, the USPTO publishes each approved application in its Official Gazette. Anyone who believes they would be harmed has 30 days to file an opposition or request an extension of time, and extensions can stretch the window to as long as 180 days from publication. If a competitor’s similar mark is published, filing an extension buys you time to negotiate a coexistence agreement or a narrower description before deciding whether to oppose. If you’re the applicant and someone opposes, it becomes a proceeding before the Trademark Trial and Appeal Board, which works like a short lawsuit.

How do I keep my registration alive?

File a Section 8 declaration of continued use between the fifth and sixth years after registration. Around the same time, once you have used the mark continuously for five consecutive years after registration, with no pending challenge or adverse ruling against it, you can file a Section 15 declaration that makes the registration incontestable. That cuts off most challenges, including the argument that the mark is merely descriptive. It is often filed together with the Section 8 declaration, and only registrations on the Principal Register qualify. Between the ninth and tenth years, file a combined Section 8 declaration and Section 9 renewal, and repeat that every 10 years. Each deadline has a six-month grace period with a surcharge. Miss it and the registration is cancelled, though your common-law rights from use continue.

Watch for scams. Once your application is public, you will receive official-looking letters and emails offering “registration,” “monitoring” or “renewal” services, often with invoices. They don’t come from the USPTO. Official USPTO correspondence comes from an uspto.gov address, and fees are paid only through the USPTO’s own system.

Is my domain name a trademark?

Not by itself. Registering a domain gives you the right to use that web address, not trademark rights in the name. If you use the domain name as your brand to sell products, it can function as a trademark like any other name. If someone registers a domain confusingly similar to your mark in bad faith, you can bring a complaint under ICANN’s dispute policy (UDRP) or sue under the federal anti-cybersquatting law.

How do I enforce my trademark?

Watch for similar names, through periodic searches or a monitoring service. If you find an infringer, a cease and desist letter is usually the first step, and many disputes end there with a rebrand, a phase-out period or a coexistence agreement. If not, you can oppose or seek to cancel their registration at the USPTO, or sue for infringement, where remedies include an injunction, the infringer’s profits and your damages.

Enforcement matters because a mark you let others use freely can weaken over time. But be measured. Aggressive letters to small users over unrelated products can backfire publicly.

If you receive a cease and desist letter yourself, don’t ignore it and don’t respond in anger. Have a lawyer assess how close the marks and products really are before you answer.

For more, see Trademark vs Copyright vs Patent, Startup Intellectual Property and How Should I Prioritize Protecting Intellectual Property?