What is a Trademark?

"Trademark" is one of three legal terms used to describe “intellectual property.” The others are "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.

Understanding trademark symbols

A trademark is denoted by the trademark symbol TM or by the federal registration symbol ® 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 that is used in connection with services.

Trademark protection

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 trademark or service mark also serves to protect consumers from deception.

Trademark registration

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.

Keep these points in mind as you decide whether to register a trademark:

  • No trademarking of common or generic terms. 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."
  • Use distinctive names. The more distinctive your business, product or service name, the more likely it will be available for you to trademark.
  • Conduct a trademark search. There are two types of searches you can conduct, giving you varying types and depth of information.
    1. Online trademark search. 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. This search may be limited to federal databases and may not always capture all instances of a trademarked term.
    2. Comprehensive trademark search. A comprehensive trademark search is the only way to see if there are variations of your desired name or logo that have been registered, if your desired name or logo is in use in a state, if it is in use as a common law trademark, or if a trademark registration filing has been abandoned. It is best to have the report created by a company specializing in comprehensive trademark search reports and then 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.

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