A trademark is one of three legal terms used to describe “intellectual property,” the others being patent and copyright. A trademark is a word, phrase, symbol, design, combination of letters or numbers, or other device that identifies and distinguishes products and services in the marketplace. A trademark is denoted by the trademark symbol, which is ™, or alternatively by the federal registration symbol, which is ®, if an actual registration filing has been approved by the United States Patent and Trademark Office (USPTO).
A service mark, denoted by the symbol SM, offers virtually the same protection as a trademark, but is used instead to identify and distinguish services, rather than products. When the term “trademark” or “mark” is used, it is understood to include service mark as well. Trademarks are usually synonymous with the brand name or design that is applied to a business or its products or used in connection with services.
Whereas patents and copyrights are basically used to protect the commercial rights of inventors and creators of artistic or literary works, respectively, the basic concept behind a trademark or service mark is to prevent unfair competition.
Trademark law protects you, the owner, from competitors stealing your identity or using a name or symbol so similar that it could cause confusion for your clients or customers. By identifying a product or service’s source, a mark also serves to protect consumers from deception.
The Lanham Act of 1946 established current federal trademark law and the procedure we follow today for registration of trademarks with the USPTO in Washington, D.C. A trademark must meet certain qualifications to be accepted on the USPTO Principal Register and reap its many benefits.
For obvious reasons, the USPTO (www.uspto.gov) does not allow trademarking of common or generic terms that are used by many or everyone to describe a type of company, product or service. Furthermore, the USPTO states that registered trademarks may not be "immoral, deceptive or scandalous matter," or "disparage or falsely suggest a connection with persons, institutions, beliefs or national symbols." Nor may they be "merely descriptive," "deceptively misdescriptive," "primarily geographically misdescriptive," "primarily merely a surname," or "functional."
What name or mark can be trademarked? The more distinctive your business, product or service name, the more likely it will be available for you to trademark.
How do you know what’s available? You can conduct an online search with a screening tool such as BizFilings’ Trademark Explorer™. This shows terms and logos that are already trademarked by others; however a comprehensive trademark search is the only way to see if there are variations of your desired name or logo that registered, where a registration was abandoned, in use in a state, or in use as a common law trademark. It is best to have the report created from a comprehensive report reviewed by an attorney for a legal opinion on whether you can proceed with your desired name, without infringing on anyone else’s mark, and also whether your desired name is a good candidate for a trademark registration.
It is not mandatory, however, to register a mark to obtain trademark rights. You can earn trademark rights simply by using the name or mark along with the symbol “TM” or “SM.” Such a use is considered a “common-law” mark. It simply indicates that a party claims rights to the mark. In so doing, it also serves to alert third parties to potential trademark infringement if they were to choose to use the same mark without authorization.
Naming your company, your products and/or your services is an important business step. It helps to create the identity of your business and create the image your customers, employees, and vendors will have of your company. Additionally, you don’t want to choose a name that is too similar to another name already in use, and to create customer confusion when trying to launch a new offering or grow a business. Investigating the availability of desired names is a protection for you and your company, and a step for which you should make the time to properly undertake.
Copyright Notice: Visitors to the BizFilings website may not reproduce, republish or redistribute material found on the website in any form without the express written consent of BizFilings. For all requests for use of copyrighted material from the BizFilings website, please contact marketing@bizfilings.com.
