What is a trademark?
A trademark is a word, phrase, symbol, and/or design that identifies and distinguishes the source of the goods of one party from those of others. A service mark is a word, phrase, symbol, and/or design that identifies and distinguishes the source of a service rather than goods. Trademarks make up much of the brand images we see every day. The Nike swoosh, Adidas bars, Apple’s slightly bitten apple; all examples of registered trademarks.
How do I register a trademark?
The United States Patent and Trademark Office, USPTO, keeps a registry of all patents and trademarks in the U.S. There are two basic requirements for a mark to be eligible for trademark protection, it must be in use in commerce and it must be distinctive. You must fill out an application with USPTO and provide a depiction of the trademark.
Must all trademarks be registered to be protected?
Registration is not mandatory to protect your trademark. You can establish “common law” rights in a mark based solely on use of the mark in commerce. However, there are several advantages that registered marks have over others including; a nationwide notice of ownership and use of the mark, and a registered mark may achieve incontestable status after five years of use.
What happens in cases of trademark infringement?
First, to support a trademark infringement claim in court, a plaintiff (person who is suing) must prove that it owns a valid mark, that it has a greater right to use the mark than the defendant (person being sued), and that the defendant’s mark is likely to cause confusion in the minds of potential customers about the source of goods or services offered. If a trademark owner is able to prove infringement the penalties may include: a court order that the defendant stop using the accused mark, an order requiring the forfeiture of infringing articles, monetary relief for damages or profit loss, and in some cases an order that the defendant pay the plaintiffs’ attorneys’ fees. By going through the steps to register your trademark you take a great step towards securing brand and your company from future confusion and competition.
Our team at Sumsion Business Law is prepared to help you negotiate the challenging process of registering a trademark, or fighting to protect your mark from competitors. Contact us today for a consultation.