Most every business owner would agree that what makes a business successful isn’t necessarily the product or service offering, but often it’s how well your product or service is marketed. I noticed this recently in my neighborhood. In the past year, it seems like a new restaurant or bar is opening up shop every month. Many of these happen to be frozen yogurt shops. Some seem to be buzzing with activity and customers on a daily basis, while others tend to be empty. When you roughly compare these yogurt shops, they are all fairly similar – they offer frozen yogurt, pricing is similar, hours are similar. The differences are evident in how they market themselves. For any business, small or large, a big component of that marketing might (and should be) its intellectual property, starting with trademark.

A trademark is pretty much what the name implies – some word and/or image combination that helps to identify your business in the marketplace. There are federal and state trademark laws which aim to accomplish the same goal: prevent competitor businesses from causing confusion in the marketplace and taking sales away from the rightful user of the mark.

To obtain trademark protection, generally, the party must demonstrate that its mark would not cause confusion in the marketplace, and that such mark is not already in use. Further, the laws prevent certain terms (such as terms that only serve a descriptive purpose) from receiving trademark protection. For instance, assume a new chicken restaurant opens shop, called “Wings ‘n’ Things Chicken.” The term “Wings ‘n’ Things” may receive trademark protection (assuming it isn’t already in use) but not the word ‘Chicken’ since ‘chicken’ is a generally descriptive term. The more unique a mark, the stronger the protection it receives. A common weak mark tends to be those that include names of a person (such as “Mary’s Pies”).

 When thinking about marketing for a business, marketing and branding must be included in the planning and execution. As part of that, if you think you have created a mark that would merit trademark registration and protection, you should consult with a lawyer as soon as practicable. Especially with internet commerce, names and marks are being put into use faster than ever. If you have questions about trademark, or would like to speak to a lawyer, contact the Law Office of Richard Kistnen, (718) 738-2324,

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