How to trademark your farm business

Brand recognition is imperative for any small business, but especially so for farm businesses. As the language of labels becomes more and more complex, consumers lean on brand recognition to make purchases.

Whether you’re a small-scale operator or a large farm corporation, you probably want your brand to represent quality, you want consumers to trust the label on your product and ultimately you want to build brand loyalty. That doesn’t happen overnight. It takes a lot of time, marketing and hard work.

After you’ve put the effort into building your brand, the last thing you want is someone using a confusingly similar wording or mark for their business. You may not realize it yet, but your brand is an invaluable asset. Obtaining a registered trademark can help you protect your brand.

Protect your brand

Your trademark is the identifying mark of your operation that connects consumers to the goods or services you offer. It can take many forms, including words — a standard character mark or stylized logo — or a symbol or design.

Distinctiveness. A trademark must be considered distinctive to be registered. Frequently, good trademarks don’t have a separate meaning other than the brand of goods being represented — Kraft®, Monsanto® or John Deere®. Trademarks can include suggestive language relating to goods or services provided (for example AgVenture® Pinnacle™) but cannot be considered merely descriptive to be registered.

Last names are considered descriptive; however, distinctiveness can be gained over time. Descriptive brands (for example Wolfe Dairy Co.) can be put on the U.S. Patent and Trademark Office’s secondary registry until the necessary distinctiveness is achieved. During this time, the applicant can still use the ® mark and have certain trademark enforcement rights. After five years, as long as the mark has been used exclusively and continuously, it will be put on the USPTO’s principal registry.

Generic marks, such as “farm” or “agriculture” can never be trademarked; however, if a brand name or logo contains a generic term then a disclaimer can be used stating that no exclusive claim is made to that term. An example of this would be Pinnacle Agriculture® with no exclusive claim to “Agriculture.”

Interstate v. intrastate commerce. If goods or services are used in interstate commerce, which takes place across state lines, a trademark can be registered with the USPTO. If the good or service is only used within a state boundary — intrastate commerce — then a trademark may be sought at the state level. If your operation is not currently using its mark in interstate commerce but plans to use it in the future, then an intent-to-use trademark application can be filed.

Registering a trademark

Protecting your brand is a priority. By registering a trademark, you’re guaranteed exclusive use, you’re legally establishing that your mark is not already being used and you’re ensuring government protection from any liability or infringement issues that may arise.

At the state level. Every state handles trademark registration a little differently. In the state of Ohio, you can register a trademark for your business through the Secretary of State’s Office. At the state level, you are also offered some protection by registering your business name when you apply to be a corporation or LLC. At that point, the Secretary of State’s Office is going to make sure that your proposed business name isn’t already in use by another company in your state. This ensures no other business in your state will be able to form a corporation or LLC with the same name. However, it doesn’t protect you from a sole proprietor or partnership using the same name within your state and it offers no protection in the remaining 49 states.

At the federal level. Once you’ve determined the name of your business meets the qualifications to be trademarked by the USPTO, you can file an application online in about an hour and a half without a lawyer’s assistance.

1. Visit the U.S. Patent and Trademark Office’s Web site, www.uspto.gov.
2. Make sure another company hasn’t already registered an identical or similar mark for the same categories of goods or services you offer by checking the site’s Trademark Electronic Search System database.
3. Provide information such as the categories of goods and services for which the mark will be used, date of the mark’s first use in commerce and whether there’s a design component to the mark you’re seeking.

Additional trademark registration information

• Online trademark registration costs between $275 and $325.
• You should receive a response from the USPTO within six months of filling for your trademark.
• U.S. trademark protection is granted to the first entity to use a particular mark in the geographic area where it operates, regardless of whether the mark is registered. However, if your mark is already registered by another company — even if you used it first — your registration will be rejected and you’ll probably need a lawyer to help you proceed.
• Before registering a mark with the USPTO, a business can usually use the small ℠ (servicemark) or ™ (trademark) symbol to help protect its brand. However, it should consult with an attorney to ensure it won’t be committing trademark infringement by doing so. Once a farm has a registered trademark, it can use the ® symbol by the mark.

Maintain your trademark

After you’ve obtained your trademark, you’ll have to renew it at six years, 10 years and every decade thereafter showing the USPTO that you are still using it. If you fail to renew it, you will have to reapply for it.

Resources

• The Wall Street Journal
• U.S. Patent and Trademark Office
• Maryland Risk Management Education Blog
• Beefmaster Breeders United