IP Protection Guide: Trademarks & Patents

• Trademarks protect your brand's identity, like names, logos, and slogans. It's crucial to file early. Choose a strong mark (fanciful, arbitrary, or suggestive) and start using the ™ symbol immediately. You can only switch to the R◯ symbol after your mark is federally registered.
• Patents protect inventions, which can be categorized as utility (how it works), design (how it looks), or plant patents. A key rule is not to publicly disclose your invention before filing, unless you fully understand the limited, US-centric grace period rules. When in doubt, file a US provisional application first, which gives you a 12-month window to convert it. Use the Patent Cooperation Treaty (PCT) to keep your international options open for up to 30 months from your initial filing date.
• Budget for time as well as money. A first response from the USPTO on a trademark application currently takes about 6–7 months. For utility patents, the wait is much longer unless you pay for accelerated examination.
• International shortcuts like the Madrid Protocol for trademarks and the PCT for patents are centralized filing systems, not grants for worldwide rights. They streamline the process and buy you time, but protection is ultimately decided on a country-by-country basis.

What Each Right Actually Protects​

Understanding the difference between trademarks and patents is the first step in building a solid IP strategy. Each protects a distinct aspect of your business.

• Trademarks: Think of a trademark as a source identifier. It’s any word, name, symbol, logo, color, or even sound that distinguishes your goods or services from others in the marketplace. For example, the name "Google" and its colorful logo are trademarks. Registering your mark on the USPTO's Principal Register provides nationwide legal presumptions of ownership and the exclusive right to use the mark. It also grants you the right to use the coveted R◯ symbol. Before registration, you can use ™ for goods or ℠ for services to show you claim rights in the mark.
• Patents: Patents protect inventions. They give the owner the right to exclude others from making, using, or selling the claimed invention for a limited time. There are three main types:
  • Utility Patents: These cover how something works—a new machine, process, or composition of matter. They have a term of up to 20 years from the earliest non-provisional filing date and require periodic maintenance fees to remain in force.
  • Design Patents: These protect how something looks—the unique, ornamental appearance of an object. The shape of the original Coca-Cola bottle is a classic example. They last 15 years from the date of grant and do not require maintenance fees.
  • Plant Patents: The rarest type, these protect new and distinct varieties of asexually reproduced plants. They also last for 20 years from the filing date.

Trademarks: A Founder’s Playbook​

For most startups, the brand is one of the most valuable early assets. Protecting it should be a priority.

Choose a Mark That Will Register (and Stick)​

The strength of your trademark determines how easy it is to register and defend. Marks fall on a spectrum:

• Fanciful: Invented words (e.g., "Kodak," "Pepsi"). These are the strongest.
• Arbitrary: Real words used in a meaningless context (e.g., "Apple" for computers). Also very strong.
• Suggestive: Words that suggest a quality without describing it (e.g., "Netflix" for streaming movies). These are strong and clever.
• Descriptive: Words that merely describe the product or service (e.g., "Creamy" for yogurt). These are weak and can only be registered after they've acquired a "secondary meaning."
• Generic: Common names for the product (e.g., "Bicycle" for bicycles). These can never be registered as trademarks.

Before you commit to a name, conduct a clearance search. Start with the USPTO's Trademark Search system, but also check Google, domain registries, and social media. The most common reason for refusal is a likelihood of confusion with an existing mark used for related goods or services.

File on the Right Basis​

Your U.S. trademark application must have a legal basis. The two most common for startups are:

• Use in Commerce (Section 1(a)): You should file under this basis if you are already selling your goods or services across state lines. You'll need to submit a specimen—a real-world example of how you use the mark, like a photo of product packaging or a screenshot of your website.
• Intent to Use (Section 1(b)): File under this basis if you have a bona fide intent to use the mark in the future but haven't started selling yet. If your application is approved, you'll receive a Notice of Allowance. From that date, you have an initial 6-month window to start using the mark and file a Statement of Use. This window can be extended in 6-month increments up to a total of 36 months.

What It Costs and How Long It Takes (U.S., 2025) 💰​

As of 2025, the USPTO has simplified its fee structure. The base application fee is $350 per class of goods or services. Surcharges may apply if you write a custom description of your goods/services instead of using the pre-approved ID Manual.

Be prepared to wait. The USPTO's current targets aim for a first action (an initial response from an examiner) in about 6–7 months. The total time to registration, if there are no issues, is targeted at around 13–14 months. These timelines fluctuate, so always check the live USPTO dashboard for the latest data.

Keep It Alive​

Registration isn't the end of the story. You must actively use and maintain your trademark. Key deadlines include:

• 5–6 years after registration: File a Declaration of Use (Section 8). This is also your first opportunity to file for incontestability (Section 15) if you've used the mark continuously for five years, making your registration much stronger.
• Every 10 years: Renew your registration by filing a combined Section 8 and Section 9 form.

Missing these deadlines can result in the cancellation of your registration.

Going International​

• Madrid Protocol: This system allows you to file a single application to seek protection in multiple member countries. However, it's not a global trademark. Your international registration is linked to your home country's application for the first five years. If your home application fails (a "central attack"), your international registrations fail with it.
• European Union (EUTM): An EUTM provides protection across all EU member states through a single registration. It lasts for 10 years and can be renewed indefinitely.

Patents: A Founder’s Playbook​

For tech-driven startups, patents can be a powerful tool for creating a defensible moat around your core innovation.

Do You Have Something Patentable?​

To be patentable, your invention must meet four key tests:

1. Patent-Eligible Subject Matter: It must be a process, machine, manufacture, or composition of matter. Laws of nature, abstract ideas, and natural phenomena are not patentable.
2. Utility: It must be useful.
3. Novelty (35 U.S.C. §102): It must be new. It cannot have been patented, described in a printed publication, or in public use or on sale before you filed.
4. Non-Obviousness (35 U.S.C. §103): The invention must be a non-obvious improvement over the prior art to someone with ordinary skill in the field.

For software and AI inventions, eligibility can be tricky. Claims must do more than simply recite an "abstract idea" performed on a generic computer. It's wise to review the USPTO's guidance on this topic before investing heavily in the patent process.

A Sequence That Works for Most Startups 🚀​

1. File a U.S. Provisional Application: This is a fast and relatively inexpensive way to secure a filing date and claim "patent pending" status. It's not examined and expires after 12 months.
2. File a Non-Provisional Application within 12 Months: Before the provisional expires, you must file a full non-provisional application that claims the benefit of the provisional's filing date. The 20-year patent term starts from this non-provisional filing date.
3. Consider the PCT for International Protection: If you want to seek patents in other countries, file an application under the Patent Cooperation Treaty (PCT) within that same 12-month priority window. The PCT gives you a unified process to preserve your right to file in over 150 countries until the national phase entry, which is generally 30 months from your earliest priority date.

Crucially, be careful with public disclosures. While the U.S. offers a limited one-year grace period for disclosures made by the inventor, most other countries require absolute novelty. This means any public disclosure before your filing date can destroy your ability to get a patent there. Use NDAs and run controlled pilots to protect your invention.

Timing and Maintenance (U.S.) ⏳​

Patience is a virtue in patent prosecution. On average, it takes about 20 months to receive a first office action from the USPTO for a utility patent. You can significantly shorten this by paying for Track One prioritized examination.

Maintenance fees are required for utility patents to keep them in force. They are due at 3.5, 7.5, and 11.5 years after the patent grants. Remember, design patents have no maintenance fees.

Design Patents and EU Designs (for “Looks”)​

If your product's competitive advantage is its unique look, a design patent is a powerful and cost-effective tool. A U.S. design patent protects the ornamental appearance of an item for 15 years from the grant date, with no maintenance fees.

In the EU, the equivalent is a Registered Community Design (RCD). It offers protection across the EU for 5 years and can be renewed in 5-year blocks for a total of up to 25 years. This is particularly useful for consumer hardware, UI icons, and packaging.

Trademark vs. Patent vs. Trade Secret — Quick Decision Cues​

Not sure which path to take? Here’s a quick guide:

• Go for a Trademark if...
  • You're launching soon and your brand is a core asset.
  • Your name or logo is distinctive, not just descriptive.
  • You can manage the filing fee now and the renewal fees every 10 years.
• Go for a Utility Patent if...
  • You have a clear technical innovation that is novel and non-obvious.
  • You can keep the details confidential until you file.
  • The high cost and long timeline are justified by the defensive value it provides to investors and partners.
• Go for a Design Patent / EU Design if...
  • The visual form of your product is your key differentiator.
  • You need a faster, cheaper, and less complex alternative to a utility patent.
• Rely on a Trade Secret if...
  • Your innovation is difficult to reverse-engineer (like the Google search algorithm or the formula for Coca-Cola).
  • You can maintain a competitive advantage by keeping it secret, and you have strong internal controls like NDAs and access restrictions.

Step-by-Step Checklists​

✅ Before You Announce Anything​

1. Strategize: Decide whether your innovation is best protected as a patent, a trade secret, or through defensive publication.
2. Legal Prep: Put Non-Disclosure Agreements (NDAs) and invention assignment agreements in place for all employees and contractors.
3. Patent Prep: If a patent is the goal, gather all enabling documentation (drawings, data, flowcharts). File a provisional application first if you need to secure a date quickly before a launch or investor pitch.
4. Trademark Prep: Shortlist several distinctive brand names. Conduct a clearance search for each. Check for available domains and social media handles. Prepare a plan for how you will use the mark in commerce to create a specimen.

✅ Filing & Follow-Through​

• Trademark
  1. When filing, select your goods and services from the USPTO's ID Manual if possible to avoid extra fees.
  2. Diligently monitor your application's status and respond promptly to any Office Action from the examiner.
  3. Calendar your maintenance deadlines: the 5-6 year declaration and the 10-year renewal.
• Patent
  1. After filing a provisional, make sure to file a U.S. non-provisional and, if needed, a PCT application within 12 months.
  2. Keep track of the 30-month deadline for entering the national phase in foreign countries.
  3. Budget for the three maintenance fees due at 3.5, 7.5, and 11.5 years for your utility patent.

Common Founder Mistakes (and How to Avoid Them)​

• Choosing a weak brand: Names like "Fast Grocery" or "Better CRM" are descriptive and difficult to register and defend. Avoid this by choosing a suggestive, arbitrary, or fanciful name.
• Skipping a clearance search: Just because the ".com" domain is available doesn't mean the trademark is. Avoid this by thoroughly searching the USPTO database and the web for similar marks in related fields.
• Announcing your tech before filing a patent: This can destroy your ability to get a patent outside the U.S. The U.S. grace period is a narrow safety net, not a strategy. Avoid this by filing at least a provisional application before any public disclosure.
• Misunderstanding Madrid/PCT: These are not "global patents" or "global trademarks." They are procedural tools. Avoid this by remembering that protection is ultimately granted and enforced on a national level, with local fees and rules.
• Forgetting post-registration maintenance: Forgetting to file your Section 8/9 renewal will lead to the cancellation of your U.S. trademark. Avoid this by calendaring all maintenance deadlines far in advance.

Timelines & Budgets (Rules of Thumb)​

• Trademarks (U.S.): File as early as possible. Expect an initial examination in about 6–7 months, with total registration time around 13–14 months for a smooth application. Government fees start at $350 per class, plus potential surcharges.
• Patents (U.S.): Utility patent prosecution is a multi-year marathon. Consider the expensive but effective Track One program if speed is critical. Budget not just for drafting and prosecution costs but also for the three substantial maintenance fees required to keep a utility patent alive.

Region-Specific Notes Founders Ask About​

• EU Trademarks: A single EUTM registration covers all European Union member states. It lasts for 10 years and is renewable indefinitely. It's a highly efficient way to secure broad rights in the EU market.
• EU Designs: The EU offers two forms of design protection. A Registered Community Design (RCD) can last up to 25 years (renewed in 5-year blocks). There is also an Unregistered Community Design, which provides free, automatic protection for 3 years from the date a design is first made public. This is incredibly useful for industries with short product cycles, like fashion.

Founder FAQs​

• Can I use the “®” symbol after I file?

  No. You can and should use ™ (for goods) or ℠ (for services) as soon as you start using a mark. You can only use the federal registration symbol R◯ after the USPTO has officially registered your mark.

• Will a U.S. provisional application keep my international options open?

  Yes, it serves as your priority date. As long as you file your PCT application or direct foreign applications within 12 months of that provisional filing date, you can claim its priority. The PCT then extends your decision window for most countries to 30 months from that initial date.

• Do design patents have yearly fees?

  No. In the U.S., only utility patents (and reissue utility patents) require periodic maintenance fees to stay in force. Design patents do not.

Pointers to the Primary Rules (Bookmark These)​

• USPTO—Trademarks: Strong vs. Weak Marks, Likelihood of Confusion, Maintaining a Registration.
• USPTO—Patents: Types and Terms, Provisional vs. Non-Provisional, Subject-Matter Eligibility, Maintenance Fees.
• International: WIPO's Guide to the Madrid Protocol (trademarks), and WIPO's PCT Applicant’s Guide (patents).
• EU: EUTM Renewals, Registered Community Designs (RCD).

Final Notes & Disclaimer​

This guide is intended to provide founder-oriented, practical guidance and should not be considered legal advice. IP rules and official fees are subject to change; for example, the USPTO revised both trademark and patent fees in 2025. Always check the official agency websites linked above before filing. For complex situations like software patent eligibility, international filing strategies, or contested matters, it is essential to consult with qualified IP counsel.