Trademark

Trademarks

A trademark is a brand name. A trademark or service mark includes any word, name, symbol, device, or any combination, used or intended to be used to identify and distinguish the goods/services of one seller or provider from those of others, and to indicate the source of the goods/services. Although federal registration of a mark is not mandatory, it has several advantages, including notice to the public of the registrant's claim of ownership of the mark, legal presumption of ownership nationwide, and exclusive right to use the mark on or in connection with the goods/services listed in the registration.

When you conduct your first transaction involving your product for money, you have, in effect, gained trademark rights to your name and may use the TM symbol. When you conduct your first transaction across state boarders, you have gained national trademark rights.

When you establish your rights by using your mark in commerce only and not registering it officially with the United States Patent and Trademark Office USPTO, the burden of proof in a dispute lies with you to show that you have rights to the name. If need be, this could be very costly for you to prove.

Registering your trademark with the USPTO is a great idea for a number of reasons. It guarantees your exclusive right to use the mark in your business category. It creates additional credibility by using ® symbol. It also increases the value of your business.

Trademark Primer - Choose your marks wisely.

We had a meeting recently with a client about the strength of their marks and we thought we would share. In a nutshell, trademarks are words or phrases that identify the source of a product or service. In terms of strength, their are five levels of marks ordered in order of their strength, strongest first: (1) fanciful; (2) arbitrary; (3) suggestive; (4) descriptive; or (5) generic. Fanciful marks are made up names, such as Kodak. Arbitrary are unrelated words applied to a product, such as Apple for computers. Suggestive marks require an additional mental step to make the connection with the product, such as Coppertone for sun tan lotion. Descriptive marks, as the name applies, describes the product, e.g., QWERTY for keyboards. Generic marks are words that become synonymous with a product, such as thermos. 1, 2, and 3 are enforceable marks. 4 can only be enforced if secondary meaning can be established. Basically you have to show that consumers associate the descriptive mark with your product. Generic marks get no protection. 

There are trademark rights under both state and federal laws. With state laws your rights mature when you use the mark in commerce. Federal law requires use in commerce and registration with the USPTO. There are also what are called intent to use applications that don't require actual use in commerce as a prerequisite to federal filing. Federal trademarks provide national protection whereas state trademark protection is limited. Federal protection cannot preempt prior use of the mark. In these instances the prior user will be able to continue using the mark within the relevant territory. 

More about Trademark Drawing click here.