Introduction
A trademark is a word, phrase, symbol or design that identifies and distinguishes the source of the goods of one party from those of others. It can be a name, slogan or even a letter or number combination. Trademarks are used in business to identify and distinguish products or services from those of others. They are an important tool for businesses to build customer loyalty and maintain brand recognition in their markets. Trademark rights can be very valuable assets because they prevent others from using your registered mark without your permission (which would cause customer confusion).
Trademarks distinguish your products, services, and business from those of another source.
Trademarks are a form of intellectual property that prevent the infringement of a brand. They can be used to distinguish your products, services, and business from those of another source. In order to obtain trademark protection for your logo, you must first determine if it is eligible for US trademark registration with the United States Patent and Trademark Office (USPTO). The USPTO requires that you have a federally registered trademark before you can use it in any marketing materials.
Is It Distinctive?
To be distinctive enough to warrant trademark protection, your logo must be able to identify your business as different from other businesses in terms of its name or product line. You may also need to show how others would recognize the mark as being associated with either their own brand or an independent third party’s respective brand such as Coca Cola® and Sprite® (both owned by The Coca-Cola Company)
of nationwide ownership and exclusive rights to use the mark in commerce with respect to the goods and services identified in the registration.
The owner of a federal trademark registration may assert its rights against other parties who are using similar or identical marks on related products or services, regardless of where they are located. The owner can sue for infringement in federal court and may request statutory damages as well as attorneys’ fees. A court can also order an infringer to cease all unauthorized use of its trademarks.
Additionally, federal registration gives owners certain advantages when trying to prevent others from registering confusingly similar marks or when attempting to recover profits earned by those who engaged in trademark infringement before they discovered their own mark was being infringed upon. A federal registration can be used by owners as evidence that they have priority over other parties under state unfair competition laws; such priority is especially important because it allows them access to an entire national market rather than just a single state’s territory (which would limit their ability to successfully assert their rights against other businesses).
The United States Patent and Trademark Office (USPTO) is a governmental agency that grants trademarks. It’s responsible for examining trademark applications, granting trademarks, enforcing trademarks and canceling them if necessary.
The USPTO does not examine or grant copyrights; it only registers them on behalf of the Library of Congress.
Trademark searching can help you determine whether someone already has registered or applied to register a mark that is similar to yours.
If no one else has rights in your proposed trademark, you can proceed with filing your application. If someone else does have rights in the same or similar mark, you’ll need an alternate choice or several alternatives before proceeding.
If you are planning on filing an application for a new business name/logo, we recommend searching our database of federally registered trademarks before submitting your request as we may be able to provide some guidance on whether there could be any potential conflicts with other marks that exist.
A federal trademark registration may be canceled or challenged on various grounds by filing a petition with the USPTO’s Trademark Trial and Appeal Board (TTAB). If a party other than the registrant files the petition, it is called an “opposition,” while if the registrant himself files it, it is called a “cancellation.”
The following parties can file an opposition to cancel a registration:
- A person who believes they have prior rights to use the same or similar mark in commerce. For example, if you sell truck parts under another company’s name and want to stop them from using that name for their business;
- An owner of a registered trademark who has been damaged by another’s unauthorized use of their mark; and/or
- Any member of public interested in seeing that trademarks are used properly.
Courts also have ruled that certain common law trademarks are protectable nonfunctional product configurations.
A common law trademark is any word, name, symbol or device (or a combination of those things) used by a business to identify its goods or services. But before you rush out and create your own, there are some important things you should know:
- Trademark laws vary by state. While all 50 states have common law trademark rights, the rules differ slightly from state to state. The most uniform protection comes from federal registration under the Lanham Act and its amendments.[6]
- A mark that has acquired secondary meaning will be more likely to meet this requirement than one that has not acquired such meaning yet.[7] For example, if “Apple Computer” were used on computers manufactured by other companies instead of just Apple Inc., then it would likely acquire secondary meaning as soon as consumers associate this term with computers made by Apple Inc., rather than just any computer company called Apple.[8]
If you are looking to obtain a trademark registration, one of the first things you need to do is learn the basic steps of obtaining a trademark registration through the USPTO.
- The first step in obtaining a trademark registration is filing an application with the USPTO. You can find this form on their website or request it by phone or mail. The fee for filing this application is $275 per class plus an electronic filing fee of $325 per class if your application contains new matter (i.e., changes from previous applications).
- After submitting your completed application, it will be reviewed by an examiner at the USPTO who will determine whether there are any issues that prevent approval, such as conflicting marks or unregistrable marks (those that aren’t eligible). If there are no issues preventing approval, your mark can proceed to publication after six months unless you want to request an earlier date by paying an additional fee. At this point in time in both instances—when no issues exist and when they do exist—your mark will undergo searching so that you can check for conflicts before proceeding further with registration efforts.*
Once all necessary documents have been submitted and filed properly with all required fees paid, then we can begin actively seeking out any potential conflicts between any similar or identical trademarks during our search process.* In other words: If someone else has registered their own “XYZ” mark first than we would not be able to register ours without doing some legwork before hand (more on this later!).
Conclusion
The U.S. Patent and Trademark Office (USPTO) is responsible for examining trademark applications. Once your US trademark application has been accepted, the next step is to pay the filing fee and file a declaration of use (Section 8 Declaration). Next, you will receive an Office action from the USPTO that allows you to respond with evidence of use or intent to use your mark in commerce in association with all goods or services listed in your application.
