Introduction
Trademarks are used to distinguish one’s business or product from another. In order to be protected, a trademark must be distinctive, and it must not be confusingly similar to existing trademarks. The likelihood of confusion is judged by considering the similarity between the trademarks that are acquired through USPTO Trademark Filing process and the goods or services they identify. For example, if you wanted to use “Apple” as a trademark for computers, this would probably cause confusion with Apple Computers Inc.’s famous brand name because they both describe products that are sold in the same market: computer software and hardware. In addition to being distinctive and not causing consumer confusion, your mark needs to have some other qualities in order for it to effectively protect your business identity.
A trademark can be a word, phrase, symbol or design that distinguishes the source of the goods or services. Also, as trade dress, it can be the appearance of a product or its packaging, including size, shape, color, texture, graphics and appearance.
For example: if you were selling adorable mini-marshmallow treats in pastel colors with sprinkles on top and called them Mallow Puffs®, your business name would be protected by trademark because it has become distinctive enough for consumers to associate the name with your brand.
Trademark protection is not intended to protect your business from competition. Trademark protection is intended to prevent others from using a confusingly similar mark, but not to prevent others from making the same goods or selling the same goods or services under a clearly different mark. For example, if someone were selling “McDonald’s” hamburgers at their deli, they could be sued for trademark infringement. However, if someone opened up a deli next door and called it “McBurger,” they would probably not be infringing on McDonald’s trademark because there would be no likelihood of confusion between these businesses.
Trademarks that are used in interstate or foreign commerce may be registered with the USPTO.
For example, if you own an online t-shirt store that sells custom t-shirts to customers across the country, you can apply for trademark. When applying for a trademark, be sure to include:
- A description of what your business does (e.g., “I sell t-shirts”)
- A description of the goods or services that you sell (e.g., “I sell custom printed t-shirts”)
- The mark itself (e.g., “My company name is [insert business name]”)
- The class of goods or services for which you are seeking registration
Federal Trademark registration has several advantages including notice to the public of the registrant’s claim of ownership of the mark, a legal presumption of ownership nationwide, and the exclusive right to use the mark on or in connection with the goods or services set forth in the registration.
It is important to note that federal registration is not required as a prerequisite for using a trademark in commerce. The Lanham Act also provides that an applicant may register his/her mark by filing an application with United States Patent and Trademark Office (USPTO) if he/she wants to prevent infringement by others.
The Principal Register is the main register of all federally registered trademark application and registrations. The Supplemental Register is an auxiliary register for marks that do not qualify for registration on the Principal Register. Registration on either Principal Register or Supplemental Register provides additional rights and advantages, but registration on only Supplemental Register is less expensive and may be appropriate for some marks but not others.
For example, if a business name that has been used continuously since 1985 were to be registered on the Principal Register, it would have the additional right to claim priority back to 1985 by using something called a “declaration of use” during its application process (see below). However, if a business name were instead eligible only for registration on only Supplemental Register due to its lack of distinctive character from other already existing marks, then no declaration of use will be allowed when applying for such protection because declarations require prior federal trademark rights as opposed to just mere state-based common law rights which are available with indefinite duration regardless whether or not an applicant has actually used them commercially before; thus there would always be older federally registered trademarks whose usage predated any potential common law ones so no one could ever claim any kind of priority over another person’s older mark(s) even though you had been using yours since 1985 without registering it anywhere else except maybe your company bank account logbook where nobody else sees it anyway because they don’t care about us anyways – well maybe our customers might care enough if they knew how long we’ve been around offering similar services/products at lower prices than most competitors’ offers so maybe those customers would like us better than those guys after all?
Conclusion
The USPTO trademark filing process is a valuable asset to your business. It tells customers and other businesses that you’ve invested in protecting your brand name, and it provides you with exclusive rights over the use of that mark.
