What is a trademark?
The United States Patent and Trademark Office defines a trademark as "any word, name, symbol, or device, or any combination, used, or intended to be used, in commerce to identify and distinguish the goods of one manufacturer or seller from goods manufactured or sold by others, and to indicate the source of the goods. In short, a trademark is a brand name."
Trademark law provides the greatest protection to the marks, which are distinctive, or out of the ordinary. Types of inherently distinctive marks include:
- unique logos (the Nike® swoosh);
- made up words (Kodak®);
- fanciful marks, words that give an imaginative image (Airstream® for motor homes);
- arbitrary marks, words that are surprising or unexpected (Apple® for computers);
- and suggestive marks, words that cleverly describe the qualities of the product or service (Contact® for self-adhesive shelf paper).
Words that are common or ordinary receive less protection unless they have developed public recognition due to their long use in the marketplace, and common words that describe the product itself and can not be protected by trademark laws.
Why You Should Register Your Trademark
Twitch Streamers with a distinctive channel name or logo might want to consider applying for trademark protection. Once a trademark is used, it is granted some level of protection, even if you haven't filed a trademark registration with the US Patent and Trademark Office. This is referred to as a "common law" trademark. Even so, you should consider filing a registration with the US Patent and Trademark Office to protect your business and give you an edge in legal situations. Registering a trademark offers a number of protections:
- Notice to the public about the trademark;
- The exclusive right to use the trademark nationwide to distribute goods and services;
- The ability to bring legal action in federal court for infringement;
- The ability to obtain a trademark in foreign countries; and
- The ability to file with U.S. Customs to prevent mock goods from coming into the country.
Federal registration of a trademark begins with filing an application for registration in The US Patent and Trademark Office. You must identify the mark for which registration is sought and describe the goods or services associated with the mark. Note that if similar marks are found to be already registered during the registrability search for your application, your application could be barred. In the eyes of the law, it's all about who came first.
Why You Shouldn't Register Your Trademark
If you have a small stream and don't have immediate grand plans for expansion, there might be little urgency to register your trademark. Using your channel name or logo in public affords some protection by itself, and unless a competitor starts to use the same name, you typically won't have a problem. However, if your channel is growing and you think there is a reasonable chance that potential competitors may want to do business under a similar name, a trademark might be worth the effort.
Taking care of your trademark
Proper use of your trademark by you is important to its protection. You should not weaken your own trademarks by using many alterations and blurring its distinctiveness. The more distinctive, the stronger the mark. You can create a family of marks which keeps certain elements common among them. If these common elements become recognizable by the public as your trademarks, then you may receive broader protection for other marks that incorporate these same common elements. Other things you can do to protect your trademark include:
- Being on the lookout for other companies using your trademark;
- Not turning your company name or trademark into a verb;
- Distinguishing your logo from other words through bold styles or fonts;
- Stylize the trademark and never stray from its style;
- Sending cease and desist letters to companies trying to appropriate your trademark.
Steering clear of other marks
When considering a name or logo for your stream, it is worth verifying if others are engaging in similar activities using a similar brand. If this is the case, their prior use of the name “in commerce” will have granted them certain rights in that name. The USPTO has a search function on its website that allows you to find existing trademarks. Note that this search will only surface US registered trademarks. It will not help you identify creators or artists who have not registered their trademark, but may have used the name and hence have obtained certain protections under trademark law. An intellectual property rights attorney can help you perform a more detailed search. If you conclude, after a search, that someone else is already using a certain brand, it might be worth considering changing the name of your channel.