A trademark is used to identify products, the source of those products, and the merchant of manufacture of the products. A trademark may come in the form of:
- Words;
- Phrases;
- Logos; or
- Other symbols.
Typically, trademarks are used so that one product and its manufacturer can be distinguished from another. Before an individual or entity registers their trademark, it is important for them to conduct a trademark search in order to determine whether another entity or business is already using the name that they chose.
It would not serve the business financially to decide on a business name, create brochures and other specific items for marketing, and then later be forced to change the name because it was already in use.
What Are the Common Types of Trademarks?
There are numerous different categories of trademarks. The common categories of trademarks include:
- Service marks: Rather than promoting a product, service marks promote a particular type of service;
- Trade dress: Certain products are known for their special packaging, referred to as trade dress;
- Collective marks: Collective marks are symbols, words, or phrases that are used to identify groups, organizations or associations, and the products, services or members of the group; and
- Certification marks: Certification marks are symbols or names that are used to guarantee the quality of another entity’s services or products.
What Is Trademark Registration?
Trademark registration is the process by which an individual or company obtains exclusive rights in a:
A trademark can be used in connection with either the sale of goods or providing services. Once a trademark is officially registered, it becomes a registered trademark.
This means that the trademarked word, symbol, or phrase may appear with the letters “TM” or an “R” within a circle displayed near the mark on the product. Trademark registration is important for those individuals who are seeking to prevent trademark infringement.
Having a registered trademark may also increase sales for a business. This is because most consumers tend to trust in a brand name product rather than a generic product.
What Is the Process for Trademark Registration?
In general, a trademark does not actually have to be registered in order for a party to claim it. With trademarks, the first-use rule typically applies.
This means that the first individual or party to use a logo or a mark for goods or services has proprietary rights in that mark. On the other hand, an individual or entity can begin the process for officially registering a trademark with the federal government by submitting an application for a trademark.
The application process involves filling out and submitting a form in addition to paying the filing fees, which are typically around $275 for a basic application. The trademark application form can be obtained and submitted through the United States Patent and Trademark Office (USPTO).
It is important to note that there may be other information or documents that the applicant will be required to submit, including:
- Proof that the individual is the owner and user of the mark;
- The first date that the trademark was used in commerce;
- An image of the mark; and
- A specimen, which is a photo or document showing how the mark is used in the sale or advertising of the goods or services.
Why Should I Register My Trademark?
It is important to register a trademark or service mark with the United States Patent and Trademark Office. This is because, once a trademark is registered, the owner of that trademark will be protected against other individuals who desire to duplicate, or copy, the trademark.
In addition, official registration of a trademark also puts the rest of the country on notice that the specific trademark has already been discovered and registered. In order to register a trademark with the United States Patent and Trademark Office, the founder of the trademark must intend to use that trademark on products or services that affect trade and commerce and are used nationally.
A trademark cannot be registered with the USPTO if the:
- Trademark is identical or similar to an already existing trademark or related goods or services;
- Trademark is on the prohibited or reserved list; or
- Trademark is too descriptive and, therefore, does not qualify for trademark protection.
Once the USPTO has approved a trademark, the trademark will be registered for a term of 10 years. 6 years into that 10 year period, the owner is required to file a form that states that the trademark is still in use.
If the trademark owner does not file the form, their registration may lapse. There are numerous advantages to officially registering a trademark under a federal or state database, which may include:
- Public notice of the individual’s ownership of the mark;
- Nation-wide presumption of legal ownership;
- Notice of exclusive rights for use of the mark in connection with goods or services;
- The ability to file a lawsuit involving unauthorized use of the trademark;
- The ability to file with U.S. Customs to prevent the distribution of infringing foreign imported goods; and
- May allow the individual to file for registration in other countries, based on their U.S. registration.
Because of these protections, many individuals choose to register their trademarks in order to make sure that their rights are fully protected under United States laws.
What Does Trademark Confusion Mean?
When an individual is filing for trademark registration, one of the main requirements is that the trademark cannot cause confusion over a registered trademark that is already in use. This means that an individual’s application will be denied if it is likely that the public would confuse the new trademark with an already existing, protected trademark.
In other words, a trademark application may be denied even if the two trademarks are not exactly the same. The test for this issue is whether the public would be confused in a way that they would mistake the newer trademark for the one already in use.
What Is Trademark Infringement or Dilution?
Federal laws offer protections for a trademark if an individual or entity uses it without permission. Trademarks are protected from infringement and dilution.
Trademark infringement occurs when an individual or entity uses the same or similar trademark for a similar good or service. Trademark dilution occurs when an individual or entity uses a well-established trademark for a different service, but either:
- Tarnishes the trademark’s good name through the use; or
- Weakens the association consumers recognize between the trademark and the services.
Do I Need a Lawyer for Trademark Registration?
Filing an application for trademark registration may be a confusing and complex process. Many individuals will begin filling out their trademark registration packet, only to discover that they are confused or are lost among the numerous questions they have.
You can save yourself stress, confusion, and loss of resources by consulting with a trademark lawyer at the beginning of the registration process. By doing so, an experienced attorney can assist you with all of the application requirements.
In addition, if you are experiencing a dispute over your trademark, for example, infringement, or you experience a dispute in the future, your lawyer will represent you interests in court and ensure your trademark rights are protected.
