A trademark is a method of distinguishing a product from comparable ones from other firms. Trademarks may be words, symbols, or even sounds or colors, and they can be a single element or a mix of elements. Trademarks are perpetually renewed as long as they are being used. The Nike swoosh and the MGM lion’s roar are two well-known logos that you are surely familiar with.
If you have trademark rights, you may prevent others from selling the same items as you by using the same or a confusingly similar mark. You cannot prevent others from selling the same items under a different mark, or from selling an entirely different product or service under a similar mark. You can only prevent someone from using the same (or extremely similar) mark to sell the same (or very similar) goods. You couldn’t, for example, run a coffee and pastry store named Dunk-In Donuts.
While trademark registration is not needed, it provides provide greater protection than using an unregistered mark. Moreover, if you want to conduct business nationally, internationally, or if your product is likely to be counterfeited, you should consider registering your mark.
How to File a Trademark
To be eligible for trademark registration, you must be presently using or plan to use the mark in commerce. You will also need to do a trademark check to confirm that the mark has not previously been registered for a comparable product or service.
You may fill up and submit your application online using the Trademark Electronic Application System (TEAS) or by mail, although postal applications take longer to process. Compile the necessary information using a trademark application spreadsheet, such as:
Your filled-out application form
A drawing of your mark, even if it is only a word with no design components.
If you already have the mark, a representation of it in use.
Designation of the specific items on which the mark will be used
Apply for your mark once you have that information. When you file your trademark application, you must pay a little application fee.
Trade Clothes and Service Marks
The word “trademark” is often used to refer to different forms of branding that are comparable to trademarks but have their own terminology. Service marks and trade attire are two examples.
A service mark provides the same protection as a trademark, except it applies to services rather than goods.
Meanwhile, trade dress refers to the “packing” of a product or service. This might involve real physical packaging, such as the color of a box (for example, Kodak’s red and yellow) or the shape of a bottle (the famous Coca-Cola bottle), but it can also refer to how a product is exhibited or the feel/decor/appearance of a location, such as a restaurant (the White Castle facade).
To be eligible for trade dress protection, the packaging must be unique and likely to create confusion if another product or service uses comparable attire. Non-unique clothing, such as a common hue, may become distinctive over time if it gets firmly connected with the product in the public’s perception.
Trademarks: Unregistered vs. Registered
The mere use of a trademark—selling your goods or service with the mark displayed on it—is sufficient to secure protection against others’ use of the same word(s) or symbol(s), but the protection is limited. Your rights to an unregistered trademark are limited to your broad geographic region, and you may only take legal action against those who attempt to steal your trademark in state courts.
By registering your trademark, you obtain the following benefits:
The right to use the mark across the United States, albeit this may be restricted within a geographical region if someone else has been using an unregistered mark on a comparable goods.
Protection before you begin using the mark, yet that protection will be lost if you do not begin utilizing it.
Right to file a lawsuit against infringers in federal court
The right to register your trademark with the United States Customs Service in order to prevent infringing foreign items from entering the country.
A reason to seek trademark protection in other countries
Moreover, registration enables you to use the sign R with your mark to alert the public that you are utilizing a registered trademark. You are not permitted to use the R while your application is pending, or on any items or services that are not specifically mentioned in your application.
Even if your mark is not registered, you may use it with the sign TM for a product or SM for a service. These symbols do not provide legal protection, but they do inform the public that you have trademark rights to that brand.
To keep your trademark rights, you must keep using the mark. You will also need to submit periodic applications for renewal (between the ninth and tenth years following registration or renewal) and declarations of use or excusable non-use for a registered brand (starting between the fifth and sixth years after registration and then with every renewal application). After five years of continuous usage in commerce, you may be required to submit a declaration of incontestability.
Making a Trademark Application in a Foreign Country
If you wish to conduct business in other countries, you must register your trademark in each of those nations. If you already have a registered trademark or an application pending in a member country of the Madrid Protocol (87 countries as of September 2012), a single “international application” will be recognized.
Several other nations accept U.S. trademark registration as the foundation for registering a mark. You must still abide with the trademark regulations of those nations.
