What is a Trademark?

As a business owner, you would want your business to prosper. For this, you want to provide a service or a product to the consumer that others do not provide. For advertisement of your businesses you may create a logo or a slogan or both, that identify your business. For example, do you associate the following with a certain product?

Have a Coake and a smile
"Have a Coke and a smile"

The logo and the slogan shown above make you think of Coca Cola and are IP of The Coca Cola Company. Specifically, they are the trademarks of The Coca-Cola.

If you have a logo for your business or use a slogan, you may have a trademark IP. Trademarks are business-oriented and protect brand names, slogans and logos. Protecting your trademark by registering it will help to preserve your business asset. Trademarks protect taglines and logos. Trademark protection distinguishes goods and services and it can be renewed every 10 years, provided the mark remains in use. Thus, trademarks may last forever. Sometimes, a product or a service is covered by patents, trademarks, copyright and trade secret protection simultaneously, since each type of intellectual property covers a separate aspect of the product or service.

From the time that humans began to roam the Earth, people have used marks to indicate the maker or producer of goods. Essentially, a trademark is any word, letter, number, design, or combination of those, that identifies one party as the source of particular goods and services from those of others.

When you see a logo on a digital camera, or a bunch of bananas, or a pair of jeans, you know who made or produced those goods. You use the logo to distinguish the goods you want from the goods made or produced by a competing brand. Over time, trademarks gain reputations. Consumers come to expect a certain level of quality based upon that reputation, which then drives their purchasing decisions. The key to retaining Trademark protection is that every time you make, use or sell the product you always use the Trademark such that there is no question in any one’s mind that on seeing the trademark only one product comes to mind.

A service mark is the same as a trademark except that it identifies and distinguishes the source of a service rather than a product. The terms "trademark" and "mark" are commonly used to refer to both trademarks and service marks. Trademark rights may be used to prevent others from using a confusingly similar mark, but not to prevent others from making the same goods or from selling the same goods or services under a clearly different mark. Trademarks, which are used in interstate or foreign commerce, may be registered with the USPTO.

Any time you claim rights in a mark, you may use the "TM" (trademark) or "SM" (service mark) designation to alert the public to your claim, regardless of whether you have filed an application with the USPTO. State trademark protection is a good first step but it only provides protection for your use of the mark in that particular state. If another party registers a similar mark with the U.S. Patent and Trademark Office, you may lose your rights in that trademark or be severely limited in several respects as to where you can use the trademark. You may be limited to a geographically restricted area or market or line of products. This loss in rights may adversely affect your business.

Federal Protection for your service mark and trademark:

In the United States, trademark rights are derived from priority of "use." Registration of those rights is not required. However, each state has a system for registering trademarks, which are used in that state. The legal effect and value of a state trademark registration can vary from state-to-state. Many trademark owners that use their mark "in commerce" choose to register their trademarks with the United States Patent and Trademark Office in order to get the benefits associated with a federal trademark registration. The term "in commerce" means interstate commerce, territorial commerce, or between the United States and a foreign country.

Owning a federal trademark registration on the Principal Register provides several advantages, including:

However, you may use the federal registration symbol "®" only after the USPTO actually registers a mark, and not while an application is pending. Additionally, you may use the registration symbol with the mark only on or in connection with the goods and/or services listed in the federal trademark registration. It provides notice to the world that your mark is registered and helps to keep your intellectual property yours. In addition to any state law protection that you may have, you have federal protection as well. You would have the ability to sue infringers in federal court to prevent them from using your federally registered trademark.

Failure to monitor and control the use of your trademark may result in it being declared generic and thus loss of your exclusive use. Examples of trademarks that have become generic are: Aspirin, Escalator, Dry Ice, yo-yo and Zipper. Proper monitoring and control means not only your own use of the mark but also the use of your own employees and even others.

Owner of trademark rights:

In the United States, trademark rights are derived from priority of "use." These rights are called "common law" trademark rights. If you are the first user of a mark, then these "common law" rights may allow you to challenge the use or registration of your trademark by someone else in several ways, depending on the factual situation.

Before beginning to use a trademark, a business should first determine whether some other business is already using an identical or similar trademark, on or in connection with the same or related goods or services, or whether some other company otherwise has any rights in the mark. By making that determination, a company reduces the risk of violating another company’s trademark rights.

If you would like to determine if a trademark is available for "use" or "registration," you should consider contacting an attorney specializing in trademark law. A search of the registrations and applications in the United States Patent and Trademark Office (USPTO) database generally is insufficient since, in the United States, trademark rights are derived from priority of "use". Local bar associations and telephone directories usually have attorney listings broken down by specialties. Time can be of the essence.

For additional Information, visit:

http://www.uspto.gov/trademarks/basics/index.jsp - This website provides basic facts about Trademarks, Frequently Asked Questions, Instructional Videos, and processing timelines for trademarks.

http://www.uspto.gov/inventors/trademarks.jsp - This is a link for connecting to the Inventor Assistance Program for Trademarks. The site provides basic information about Trademarks, Service Marks, basics of applying for a trademark and the filing fee.