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What is a Trademark?

A trademark (popularly known as the brand name) in layman’s language is a visual symbol which may be a word signature, name, device, label, numerals or combination of colours used by one undertaking on goods or services or other articles of commerce to distinguish it from other similar goods or services originating from a different undertaking.

The legal requirements to register a trademark under the Act are:

The selected mark should be capable of being represented graphically (that is in the paper form).

It should be capable of distinguishing the goods or services of one undertaking from those of others.

It should be used or proposed to be used mark in relation to goods or services for the purpose of indicating or so as to indicate a connection in the course of trade between the goods or services and some person have the right to use the mark with or without identity of that person.

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Why register a trademark?

The purpose of registering a trademark is to prevent competitors of your business from stealing your business name, logo, or slogan. Protecting your unique name, word, phrase, symbol or logo is one of the most important investments in your business. Many businesses lose creative logos, unique selling positions and slogans due to the lack of registering a trademark. By registering your trademark, you are protecting your rights as a business owner so no other competitor can diminish or dilute your quality of products or services. When you register your trademark, you can stop competitors from using or misappropriating not only your very same business name or logo, but also anything that is confusingly similar to your business name and logo. For this reason, registering your trademark is an important step in protecting your rights.

If you wish to register a trademark or a service mark, TrademarkistPro can assist you in obtaining one from the convenience of your home or office. Simply answer a few questions online and let us take care of the rest.

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What Do Trademarks Protect?

Trademarks protect consumers from being misled. They ensure free competition by protecting the goodwill of the entity that owns the mark. Unlike copyrights that deal with the marketplace of expressing ideas, trademarks deal with the marketplace of goods and services.

A trademark represents the goodwill of a business or a particular manufacturer or producer. Trademark symbols provide powerful source-identifying cues that allow us to make value judgments about the quality of certain goods before we sample them. For example, when we see (and hear) Leo the Lion and the phrase ``Ars Gratia Artis`` at the beginning of a motion picture, we immediately associate this trademark with ``MGM Studios,`` home of Garbo, Crawford, Gable Tracy and Hepburn, Mickey Rooney and Judy Garland. Similarly, when you see the distinctive shape of a bottle of ``Coca-Cola`` you know, without having to read the label, what is in inside.

Frequently Asked Questions

Are Trademarks, Copyrights, and Patents the same things?

No. Trademarks, copyrights, and patents protect different types of intellectual property. A trademark typically protects brand names and logos used on goods and services. A copyright protects an original artistic or literary work. A patent protects an invention. For example, if you invent a new kind of vacuum cleaner, you would apply for a patent to protect the invention itself. You would apply to register a trademark to protect the brand name of the vacuum cleaner. And you might register a copyright for the TV commercial that you use to market the product.

A trademark application must include the following elements:

  • The name of the applicant;
  • A name and address for correspondence;
  • A depiction of the mark;
  • A sworn statement that the mark is in use in commerce;
  • A listing of the goods or services;
  • The filing fee for at least one class of goods or services; and
  • A specimen, if filing a “current use” based application

There are two bases for filing a trademark application: current use and intent to use.

In use:

If you are basing your trademark application on “current use,” you must include a sworn statement (usually in the form of a declaration) that the mark is in use in commerce, listing the date of first use of the mark anywhere and the date of first use of the mark in commerce.  You must also include a specimen showing the use of the mark in commerce.  For specimen of goods, the mark must appear on the goods, the container for the goods, or displays associated with the goods, and the goods must be sold or transported in commerce.  For specimen of services, the mark must be used or displayed in the sale or advertising of the services and the services must be rendered in commerce.

Intent to use:

If you have not yet used the mark, but plan to do so in the future, you may file an application based on a good faith intention to use the mark in commerce. You do not have to use the mark before you file your application.  An “intent to use” application must include a sworn statement (usually in the form of a declaration) that you have a bona fide intention to use the mark in commerce

When is the right time to trademark our company name?

You should lock up trademark rights for your company or product name as soon as possible by submitting an intent-to-use trademark application. This ensures that your brand is protected once you begin commercial sales. In addition, a comprehensive trademark search usually accompanies the registration filing. This search will ensure that your mark is available and you don’t accidentally infringe on someone else’s mark. You definitely don’t want to be on the wrong end of a trademark dispute.

Should I file as an individual or a corporation?

You can file a Trademark as an individual or a corporation in regard to ownership. You can always transfer ownership later. For example, if you are starting a company by yourself, but ultimately want it to be in your company’s name, you can file under your name and transfer it to your company later. The same is true in reverse.

What kinds of things are asked of me when I start a trademark filing application?

You are required to describe how you use, or plan on using your trademark.  You are required to describe who will own the trademark, and on what kinds of goods or services the trademark will be used.   The owner of the mark is the person or entity who controls the nature and quality of the goods/services identified by the mark.  The owner is not necessarily the name of the person filling out the form. The owner may be an individual, corporation, partnership, LLC, or other type of legal entity.  TrademarkistPro makes the process very easy for you, just click here to get started in applying for your trademark.

What are the potential drawbacks to not federally trademarking my logo?

Another company could apply for the same or similar logo, and perhaps even oppose your use of the logo if it hasn’t been trademarked.

Copyrights vs. Trademarks: Related but Different

Copyrights and trademarks, which are sometimes confused, provide different forms of protection. Copyright law protects the way authors and artists express facts and ideas (but not the underlying facts and ideas). Unlike copyright law, trademark law protects names, titles, short phrases and other symbols that distinguish the source of one product (or service) from another. Trademarks — which are a form of commercial shorthand — are important in a marketing sense because they establish goodwill between a purchaser and seller. A service mark relates to services in the same way a trademark relates to products.

Just about anything that identifies and distinguishes products and services in the marketplace can function as a trademark. A trademark can be a word, symbol, distinctive phrase, design, product shape, combination of letters or numbers, or even a sound or a smell that identifies and distinguishes particular goods from those of others.

Unlike copyrights that exist from the moment of creation, trademarks generally develop over a period of time — gathering strength through public recognition. While copyrights grow old, die and fall into the public domain, trademark rights can continue indefinitely if there is continuous use, and the mark (shorthand for trademark) is not permitted to lose its trademark significant by becoming a generic term. Even the tests for copyright and trademark infringement differ.

How Are Trademark Rights Earned?

Trademarks are earned not born. They come into being through actual use. Trademarks are an alliance of law and marketing. If there are no prior rights attached to a name, phrase, design or logo, you may be able to assert trademark rights in that particular. That is, the first person to use a word, or symbol in connection with the sale of goods or services may across state lines. Trademarks are protected under both federal and state law. You do not have to register a trademark to have it protected, although there are advantages to doing so (e.g., exclusive nationwide ownership of a mark). By using a “mark” on or in connection with goods, or displaying it in connection with services offered, you can acquire trademark rights.

TIP: Make sure you own your logo! Many publishers have hired others to create logos to identify their goods and services. Logos, as graphic designs, are generally protected by copyright law and, unless the person creating it is your employee, they, not you, may actually own it! A written work for hire agreement signed by everyone who will participate in the creation of a logo must be signed before any work begins. Otherwise, you may need to obtain a copyright assignment after the fact granting you all rights, in their design, including the right to use it as your trademark.

Do I need to be using my logo in business before filing a trademark application?

No. You can file an Intent To Use application right at any time; however, before your logo becomes a registered trademark, you will need to show proof that the logo is used in commerce (brochure, website, business card, etc.).

Do I need to trademark my logo?

It depends on whether you feel that your logo helps you grow and distinguish your business from the competition.  Keep in mind that if a large corporation, federally trademarks “your” logo, they might force you to abandon it.  If you plan on franchising your business or compete nationally/globally (e.g., websites doing interstate commerce), then trademarking is something you need to seriously consider. If you like the logo design and believe it has the necessary qualities to stay with your business for years, trademark it! Starbucks® trademarked their logo early on when they were local and small.  The branding of your company is a crucial element to the success of your company.

Should I trademark my company slogan and name at the same time that I trademark my logo?

People do this often for convenience. Please keep in mind that each “mark” (i.e., brand, logo, slogan, name) will require a separate application/filing.

When are the symbols ``TM`` , ``SM`` and ``®`` used?
  • TM SYMBOL: Parties claiming rights to particular trademarks may use the symbol TM next to their marks at any time – even prior to filing a trademark application.
    SM SYMBOL: A party claiming such right to a Service Mark may similarly use either the TM or the SM symbol. Registration is not necessary in order to use these particular symbols.
    THE ® SYMBOL: The ® symbol indicates that the trademark is a valid U.S. federally registered trademark. It is generally not permissible to use the ® symbol in the U.S. unless you have a valid U.S. federally registered trademark. Additionally, merely filing a trademark application is not enough, one must wait until the trademark successfully completes the entire registration process before using the ® symbol.
If I trademark my company/product name, does that mean nobody else can use it?

The main purpose of a trademark is to prevent confusion in the marketplace, ensuring that consumers will know who is behind a certain product or service. That’s why trademark protection only applies to a particular category of goods and services. Nike Inc. owns the mark on a variety of shoes, clothing, sporting goods, etc. But there’s also a Nike Corporation that’s involved in hydraulic lifting jacks and other heavy machinery. There’s really no risk of a consumer confusing those two companies.