Trademarks: Everything You Need to KnowStartup Law ResourcesIntellectual Property
A trademark is a form of intellectual property. Whether you want to Trademark a logo, trademark a name, trademark a slogan. Learn more about trademarks today on UpCounsel.
Definition of a Trademark
According to the United States Patent and Trademark Office (USPTO), a trademark is “a word, name, symbol or device that is used in trade with goods to indicate the source of the goods and to distinguish them from the goods of others.”
What Does This Mean?
It means that it is some word, brief slogan, logo, picture or design that connotes a certain product or business.
Some examples: The McDonald's “golden arches” M, the Pepsi symbol, and even just the name Coca-Cola.
The USPTO also tells us that a service mark “is the same as a trademark except that it identifies and distinguishes the source of a service rather than a product.” This means that it is exactly the same as a trademark, except the thing that the slogan or logo represents is a service. The Virgin Airlines “Virgin” scrawl or the AT&T tone and woman's voice saying “AT&T” are good examples of service marks. “Trademark” and “mark” are typically used as proxies for both trademarks and service marks.
Trademarks Should Be Unique
A trademark is the way that a company stands out in the marketplace and distinguishes itself from others in its field. Any unique logo, design, slogan or word can be a trademark, but it is not enough to be descriptive. This uniqueness requirement is important because trademarks grant their holders the legal right to keep others from using registered marks which might be so similar as to confuse the public. Trademark holders cannot stop competitors from making or selling the same goods or services under a clearly different mark.
Ideally, trademarks are immediately recognizable. They also communicate with current and potential customers by using their existing experiences. If a trademark is effective it can signal the product of the company to the consumer, or even signal positive associations with things like quality, prestige or value. This leads to desire for “brand name” items.
Examples of well-known trademarks that have their own following are: Gucci, BMW, and Rolex.
Registering a Trademark is Always Best
Although you do not have to register a trademark in order to establish your rights to it. It is a really good idea to register your trademark for several reasons. Because, once you register the mark you gain a legal presumption that you own the mark and have an exclusive right to use it. This right is nationwide.
You can also record your U.S. registration with the Customs and Border Protection Service to prevent importation of infringing foreign goods and to obtain registration in foreign countries. When you register your trademark it gets listed in the USPTO's online databases which provides public notice of your ownership. You also gain the right to use the ® symbol and to bring infringement cases in federal court.
Remember, you may use the “TM” (trademark) or “SM” (service mark) notations to alert the public to your trademark ownership claim even when you're not registered with the USPTO.
However, you may only use the federal registration symbol “®” after the USPTO actually registers your trademark. You cannot use that symbol even if you have applied for registration and your application is pending. Once your registration is in place, you may only use the registration symbol in connection with the specific goods and/or services that you've registered.
How Long is a Trademark Protected For?
Registered trademarks are typically protected for a period of 10 years. They are renewable indefinitely. It is important to know what the USPTO does and does not do in connection with trademarks. The USPTO reviews trademark applications. When it does, it determines whether the trademark meets the requirements for federal registration. That is basically all it does.
However, do not take federal registration as a sign that you automatically have a right to use a trademark under federal law. The USPTO does not decide whether you have the right to use a trademark. This is different than the right to register. They do not enforce your rights in the mark or assist you in taking legal action against trademark infringement.
The USPTO does not conduct trademark searches for members of the public. It is crucial for you to do a trademark search yourself before you choose a mark, but the USPTO will not do it for you.
Even better, you should consult with an exprienced trademark attorney to conduct the search to ensure you do not overlook an already registered trademark, which could cost you quite a bit of your time and investment if not searched properly.
The USPTO cannot comment on the validity of marks that are already registered, nor can they answer your questions before you file about whether your mark will be able to be registered.
Finally, the USPTO cannot provide legal advice of any kind and cannot assist you with recording your mark with the U.S.Customs and Border Protection.
Questions About Trademarks or Help with Registering a Trademark
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