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Trademark? Trademark Registration? Do I Need One?
®®®
 

Note: The information which LegalArrow® offers below is for general informational purposes only, and is not, and should not be relied upon as legal advice. See our entire Disclaimer. On this website you can order professional trademark search and registration services.

 

What Is A Trademark?

A trademark is a word, a group of words, a symbol, a design/logo, or a combination of words, symbols and design/logo, used by a business to clearly and effectively inform current and potential customers about the origin of its goods or services. In other words, a trademark is the brand or the ID card for a good or service a business is offering in the marketplace. The consumers are relying on the trademark to identify the source of the goods or services they are interested in, and they make quick buying decisions based on the reputation of the trademark owner. A trademark generally identifies a good or a class of goods (e.g., Lipitor - for cholesterol drug, Pepsi - for soft drinks, Nike - for athletic shoes, etc), while a service mark identifies a service or a class of services (e.g., AT&T- for telecommunication services, Wal-Mart - for retail business services, McDonald's - for restaurant services, etc).

Do I need A Trademark?

If you are in business offering to sell something (goods or services), the answer is yes. A trademark helps you stand out from the crowd. It is an excellent marketing tool, which helps you compete in the marketplace. Without a strong trademark, consumers may be confused and buy from your competitors even if your good has or your service is of superior quality. This is why, all major companies, like the ones enumerated above, are carefully planning the selection, the protection, and the promotion of their trademarks. This companies hire professionals to perform trademark searches to ensure that the trademark they want is not claimed or used by anybody else. They register their trademark nationally (federal trademark registration - USPTO) and even internationally. Today, as the cost of these services continues to decrease, small business too can afford to make use of this powerful marketing tool, the trademark. A strong trademark is one of the most important assets a business may acquire.

Do I need to register my trademark at federal level (USPTO)?

In the past, if you ran a small car repair shop for example, in a small town, with no plans to expand, the answer was probably no. You may have not even needed to register your trademark in your state. Someone else could run a similar operation under the same name in another state, or even in the same state. Irrespective of who used the mark first, because of geographically separated markets, both users (or many users) could use the mark simultaneously. However, in today's Internet environment, these geographical boundaries are becoming increasingly meaningless. You or another user may start a website, or advertise online in another way, and here you are, consumer confusion and trademark conflict may occur. Therefore, even for a small business, federal trademark registration is generally deemed a wise investment in today's marketplace.

What are the benefits of a USPTO trademark registration?

While rights in a trademark may be acquired by using the trademark in commerce, owning a federal trademark registration on the Principal Register provides several advantages, as for example:

  • constructive notice to the public of the registrant's claim of ownership of the trademark;

  • a legal presumption of the registrant's ownership of the trademark and the registrant's 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 a lawsuit concerning the trademark in federal court;

  • the ability to file the U.S. registration with the U.S. Customs Service to prevent importation of infringing foreign goods.

  • the use of the U.S registration as a basis to obtain registration in foreign countries.

May I register any word(s) or design I want as my trademark?

First, generally you may not register with USPTO an identical or similar trademark, which was previously registered by someone else. A similar trademark will not be registered if it conflicts (i.e., it is "confusingly similar") with another pending or registered trademark. To determine this, USPTO looks primarily at the similarity of the marks, and the goods or services associated with each mark. Furthermore, generally it is not wise to register a trademark used by someone else, even if it was not registered, because the mere use of the trademark may give trademark rights to that other user.
Secondly, USPTO will not generally register trademarks if they include geographic names, as for example "California Apple" proposed to be used to identify apples. Also, generally the USPTO will not register a generic mark, as for example "Apple" to sell apples, or a descriptive mark (e.g., "Juicy Apple" for apples). The mark has to be fanciful (e.g., "Alpexis" for apples), arbitrary (e.g., "Apple" to sell computers), or at least suggestive (e.g., "Polar Bear" for refrigerators). This is not an exclusive list, but a list of some common reason why registration may be denied by the USPTO, and why you may be denied any rights in a trademark even if you were the first to use it in commerce.

What is the meaning of the symbols ®, ™, or SM?

You can use the symbol ® next to your trademark only after you received a registration certificate from the USPTO. By doing so, you alert others that your trademark or service mark is registered. The ™ or SM symbols can be used before registration, anytime you want to alert others that you claim some trademark rights in your unregistered trademark (™), or service mark (SM).

Do I have to use the trademark before I apply for federal registration?

No. USPTO allows you to also apply for trademark registration based only on your declared good faith intent to use the trademark in commerce. The application is called 'intent-to-use' application. If approved, you have approximately six month to start using the mark and submit an 'allegation-of-use' form to the USPTO, together with a specimen (see below). LegalArrow® can prepare and file both applications for you.

What is a 'specimen'?

A specimen is a proof that the trademark is actually used in commerce in connection with the goods or services listed in the application. For goods, an acceptable specimen is a picture showing for example a label which contains the trademark on the goods or their packaging. For services, an acceptable specimen is an advertisement showing that the respective services are marketed using that service mark. A specimen is required at the time of filing if applying for registration on the 'use-in-commerce' basis, meaning that you are currently using the mark to sell your goods or to advertise your services. It is also required within approximately six months after filing an 'intent-to-use' application.

 

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