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A trademark is a word, phrase, symbol, logo or design, or a combination of words, phrases, symbols, logos or designs, that identifies and distinguishes the source of the goods of one party from those of others.
An example is the six Coca-Cola cans on the left all in different languages, but easily recognizable as the product Coca-Cola. Why? The red can, the white ribbon, the styling of the wording, all registered trademarks that serve to identify the brand and product source.
A service mark is the same as a trademark, except that it identifies and distinguishes the source of a service rather than a product, such as “When it absolutely, positively, has to be there overnight" identifying brand and source of overnight delivery services by FedEx.
The terms "trademark” and “mark” are often used interchangeably to refer to both trademarks and servicemarks.
Do Trademarks, Copyrights and Patents protect the same things?
No. Trademarks, copyrights and patents all differ. A copyright protects an original artistic or literary work; a patent protects an invention or process.
Is registration of my trademark required?
No. You can establish rights in a trademark based on legitimate use of the trademark. However, obtaining a federal trademark registration on the Principal Register provides several advantages: constructive notice to the public of your claim of ownership of the trademark; a legal presumption of your ownership of the trademark and your exclusive right to use the trademark nationwide on or in connection with the goods and/or services listed in the registration; the ability to bring an action concerning the trademark in federal court; the use of the U.S. registration as a basis to obtain registration in foreign countries; and the ability to file the U.S. registration with the U.S. Customs Service to prevent importation of infringing foreign goods.
When can I use the trademark symbols TM, SM and ®?
Any time you claim rights in a trademark, you may use the “TM” (trademark) or “SM” (servicemark) designation to alert the public to your claim, regardless of whether you have filed an application with the USPTO (United States Patent and Trademark Office). However, you may use the federal registration symbol “®” only after the USPTO actually registers a trademark, and not in most cases while an application is pending. Also, you may use the registration symbol with the trademark only on or in connection with the goods and/or services listed in the federal trademark registration.
Why should I obtain Federal Trademark protection, doesn’t state registration do the same thing?
State registration only protects your trademark within the state, federal registration protects your trademark on a national level, and may afford some international protection as well.
Why should a “Common Law” search be performed in addition to the federally registered trademark search?
A registered trademark search, while very comprehensive, only covers those trademarks that a federal registration has been sought for. Many other trademarks are in use by entities that have not sought a federal registration. Sometimes these trademarks are registered with state governments, but often these trademarks are not registered at all. If these trademarks are in use, are substantially similar to your trademarks, and were used in interstate commerce prior to your trademarks, you could have major problems down the road.
Even if your trademark is approved for federal registration, the person or entity using the “senior” trademark could later challenge your registration and have it cancelled. Should this happen after you have invested a great deal of time and money into your trademark, the consequences could be disastrous.
Better to invest a small amount of time and money upfront to be able to paint a clear picture of your risks, rather than approach them blindly.
How long does it take?
That really depends on the speed at which the USPTO moves, but typically expect a year or more for the process to be completed.
Once my registration is approved, what then?
You must continue to use your trademark in commerce, or risk losing it. At five years you will be required to “renew” your registration, and show that you are using the trademark in interstate commerce, and then every ten years thereafter.
Have questions or need help? Get in touch with us.
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