If you’re a business owner, you might be wondering, what can be trademarked? Trademarks help protect brand names, logos, and other distinctive elements of a business. They prevent competitors from using similar identifiers that could confuse customers. Securing a trademark strengthens your brand, giving you legal rights to exclusive use and adding credibility to your business.
But trademarks can be a little complicated because there’s a lot to them. In this guide, we’ll walk through the essential facts of what you can trademark, what you can’t, and other essentials you need to know.
A trademark can protect a variety of intellectual property — names, words, phrases, symbols, symbols, sounds, and even colors — if they uniquely identify your brand. However, many people mistakenly believe they can trademark common words or generic phrases. The United States Patent and Trademark Office (USPTO) only grants trademarks for distinctive brand elements that are actively used in commerce. USPTO handles federal trademark registration, but you can also pursue a trademark at the state level.
Technically, under common law trademark rights, you are the owner of a trademark if you’re the first to use it in commerce (even if you don’t register it). But if you need to protect your mark, you’ll find it harder to defend it unless you register it. Registration makes it easier to protect your intellectual property.
If you decide to formally register a trademark, you’ll need to apply for one. The process is time-consuming since you’ll need to make your application, prove that your mark is unique and in use, and then maintain your registration. It’s highly recommended that you get an attorney’s help if you pursue registering a trademark.
But in the meantime, let’s walk through the basics of what you can trademark. Here are 10 things you can pursue trademark registration for.
Can you trademark a business name? Yes, you can. Trademarking business names is permitted, but only if the name in question is unique and actively used in commerce.
It’s very important to keep in mind that trademarking company names is very different from registering a business name in your state (such as by forming an LLC or corporation under the name). A state business registration prevents others in your state from using the name, but it doesn’t give you nationwide protection.
For example, Coca-Cola is an existing registered trademark for the Coca-Cola Company. No other company can legally use the name Coca-Cola for beverages.
If your business name is too generic, like “Best Pizza,” you likely won’t get a trademark for it. It’s not unique and distinct enough to warrant a trademark.
A logo is one of the most common types of trademarks (sometimes called service marks). Since logos visually represent a brand, trademarking them helps prevent copycats from using a similar design. The more distinct a logo, usually the easier it is to set up trademark rights for it.
Famous examples of trademarked logos include the Nike swoosh and McDonald’s golden arches. These symbols are instantly recognizable, making them valuable brand assets. Understandably, they’re trademarked to protect them; anyone who uses these marks risks a serious lawsuit.
You might not think of a brand motto as being a registered trademark, but it is possible to register one. To qualify as a trademark, a slogan needs to be distinctive and directly associated with your brand. Under that definition, a generic phrase like “the best burgers in town” likely wouldn’t qualify.
What does qualify? Take, for example, Nike’s “Just do it” slogan, or the McDonald’s slogan, “I’m lovin’ it.” We’ve all heard those phrases. They’re strong taglines that reinforce their brands’ identities; consumers identify those phrases with their brands immediately. That means they’re worth protecting, and that’s why they’re already existing trademarks.
It’s actually a very common practice for brands to trademark their product names. It happens more than you might realize at first glance. Your iPhone is a smartphone with a trademarked name (owned by Apple Inc). The Big Mac you had for lunch is a trademarked hamburger.
Businesses with distinct product names often choose to get a trademark to protect their brands from copycats and legal disputes. If you decide to pursue a trademark yourself, keep in mind that you can’t trademark generic terms like “smartphone” or “laptop” since they’re commonly used by everyone. You can only trademark non-generic words.
Can a sound be trademarked? Yes! If a sound is unique and strongly associated with a brand, it can qualify for trademark protection. Some common sound trademarks include the three-toned chimes of NBC, or MGM’s lion roar.
If your business has a distinct jingle or sound effect, securing a trademark can help maintain your brand recognition.
A specific color can be trademarked if it’s strongly linked to a brand. Some famous examples include the iconic Tiffany blue by Tiffany & Co. UPS’s brown is also well known, as is John Deere’s well-known green.
With colors, it’s important to note that you can’t just trademark the color itself. What you can trademark is the use of a specific color in branding. So while Tiffany & Co can’t keep a three-year-old from using that shade on their coloring page, they can prevent other brands from using their blue in their brand packaging.
Can packaging be trademarked? Yes, it can. This process is also known as trade dress protection. Trade dress includes the visual appearance of a product or its packaging if it’s unique and identifiable.
A famous example is the Coca-Cola bottle shape. Since customers associate the design with the brand, it qualifies for strong trademark protection.
Fictional characters can be trademarked if they represent a brand. Disney’s characters, like Mickey and Minnie Mouse, are trademark protected; in fact, in a famous case, Disney threatened to sue daycares that painted their walls with their characters. Other common trademarked characters include the Pillsbury Doughboy and Geico’s Gecko.
Businesses that use mascots to promote products or services often trademark them to prevent unauthorized use.
Domain names and hashtags — in terms of business, they’re relatively new. But they still can qualify as intellectual property for businesses and brands. In turn, domain names and hashtags can be trademarked. That said, they can only be trademarked if they’re distinct and associated with your brand.
For instance, general domain names like bestshoes.com wouldn’t qualify, and neither would a trademark like “Throwback Thursday.”
Take, for example, the hashtag #TacoTuesday. In the past, the phrase “Taco Tuesday” used to be owned under a trademark by Taco John’s. So technically speaking, using #TacoTuesday online would have been infringing on their trademark. But Taco Bell filed a petition requesting that USPTO cancel the trademark, arguing that the phrase was actually generic. Ultimately, Taco Joe’s relinquished the trademark instead of trying to defend it, but they would have been within their rights to fight for it if they chose to.
Event names and conference titles can even be trademarked if they’re unique and used for commercial purposes. For example, Ted Talks and Coachella are both trademarked; that’s why other events can’t use similar titles.
If you decide to pursue a trademark for an event name or conference, be sure that you’ve researched to ensure that you’re not infringing on other names that might be protected. You’ll also have to ensure that your name isn’t too generic; if it is, you probably won’t be issued a trademark.
Some things can’t be trademarked, even if they seem unique. There are some common things you can’t trademark (even if you want to), such as generic terms or descriptive phrases. For example, words like “restaurant” or “shoes” can’t be trademarked alone; they’re too generic. A phrase like “best coffee” would also be too generic.
Another thing to consider: some functional features can’t be trademarked. If a certain design is fundamentally necessary for a product’s functionality, it could be considered “generic” as well. This does differ from patents and copyrights, which are protected differently and fall under different criteria. If you aren’t sure about these particular distinctions, it’s best to consult with a trademark attorney.
Finally, it’s important to remember that the USPTO doesn’t approve trademarks that include misleading or offensive content, even if they’d otherwise qualify for intellectual property protections.
Trademark law allows for the protection of business names, logos, slogans, product names, sounds, colors, packaging, mascots, domain names, and event titles. Securing a trademark helps protect your brand’s identity and prevents competitors from copying your assets.
If you want to build a strong brand, consider trademarking key elements of your business. Protecting your trademarks early can save you time, money, and legal headaches down the road.
As we mentioned earlier, though, getting a trademark can be time-consuming, expensive, and complicated. While it can be well worth the effort, it’s recommended that you consult with a trademark attorney for assistance and guidance with a trademark application.
Disclaimer: The content on this page is for information purposes only and does not constitute legal, tax, or accounting advice. If you have specific questions about any of these topics, seek the counsel of a licensed professional.
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