Should you trademark your logo?
The short answer is YES. Protecting your brand is vital to the success of your company.
Trademarking your logo will:
- Enable you to stop others from using your logo in a confusingly similar way.
- Identify you as the source of your goods or services.
Logos that are not registrable
Common geometric shapes and background designs that lack distinctiveness to create a commercial impression are not indicators of a commercial source and are absent evidence of distinctiveness. Thus, a registration may be refused.
A background design that is used with word marks must create a commercial impression on buyers. Trademark examiners will ask whether or not the background material is inherently distinctive or not. If the background portion is inherently distinctive, no proof of secondary meaning need to be introduced; if not, proof of secondary meaning is essential.
Responding to a Trademark Examiner’s Refusal
An applicant can respond to an application refusal for a common geometric shape or background design by submitting evidence that the subject matter has acquired distinctiveness. The examining attorney will scrutinize submissions that assert distinctiveness to determine whether it truly establishes that the subject matter is perceived as a trademark by the purchasing public. In other words, has the logo acquired a secondary meaning? The logo must be perceived as a trademark by the public and an applicant can achieve this by submitting additional evidence to establish distinctiveness.
The following are examples where the evidence of distinctiveness was insufficient:
- Green rectangular background design not inherently distinctive; Benetton, 48 USPQ2d at 1217
- Parallelogram designs used as background for word marks not inherently distinctive;Anton/Bauer, 7 USPQ2d at 1383
- Escutcheon design used as a frame or border for words; In re Kerr-McGee Corp., 190 USPQ 204, 207 (TTAB 1976)
The following are examples where the evidence of distinctiveness was sufficient:
- Use of applicant’s design of a cloud and a lightning flash used as a background for the word “SCHENECTADY”; In re Schenectady Varnish Co., 280 F.2d 169, 171, 126 USPQ 395, 397 (C.C.P.A. 1960)
- Light-colored oval within black rectangular carrier not inherently distinctive but evidence provided was sufficient to establish acquired distinctiveness; In re Raytheon Co., 202 USPQ 317, 319-20 (TTAB 1979)