This legal guide’s information might assist small company owners in determining when they should consider registering their trademark.
What you’ll discover:
What does a trademark safeguard?
Is a federal registration required for trademark protection?
What distinguishes a trademark from a copyright?
Can I keep my trademark if another company uses it first?
Can I prevent a company from utilizing a trademark that is identical to mine?
Protecting one’s most precious assets is an important part of operating a successful small company. A brand name, slogan, or logo may be the most valuable asset for certain organizations. If a rival begins utilizing your company’s name or logo, consumers may wrongly believe there is a relationship between your company and your competitor’s company. They may even purchase from your competition while believing they are purchasing from you. Trademark laws may assist companies in protecting the words and designs used to identify their goods and services. The information provided here may assist both seasoned and inexperienced small company owners in determining when they should consider registering their trademark.
Table of Contents
What does a trademark safeguard?
The Lanham Act, a federal statute, controls how trademarks are registered and protects trademark owners against other confusingly similar marks being used for identical products or services. The Lanham Act defines a trademark as “any term, name, symbol, or device” used to identify and differentiate products or services from rival goods or services. This might include:
Name brands.
Names of businesses.
Logos for products or businesses.
Slogans are phrases used in marketing and advertising.
Trade dress is a specific style or layout used in product packaging.
They are sometimes referred to as “marks.” The word “trademark” refers to markings that identify items under the Lanham Act, whereas “service mark” refers to marks that identify services. The term “trademark” may refer to both types of markings.
Even if a person has not registered a mark, using it in commerce immediately grants the owner certain rights under U.S. trademark law. They are classified as “common law” rights since they do not need registration. “Use in commerce” might refer to utilizing the mark on things for sale or in advertising.
But, a federal registration with the United States Patent and Trademark Office (USPTO) provides trademark owners with extra rights, making this option appealing. These advantages include the following:
The trademark is included in the USPTO’s searchable database of registered and pending trademarks. This informs prospective rivals that you have asserted certain rights in the mark.
You have the right to sue the trademark owner in federal court for trademark infringement. In the event of a lawsuit, your registration establishes your ownership of the mark, potentially saving you thousands of dollars in legal fees.
There is a legal presumption that you own and have the right to use the trademark.
You may use your registration to apply for trademark protection in other countries.
You are permitted to utilize the federal trademark registration sign, ®. You may only use the “TM” emblem prior to registration or if you simply claim common law rights.
A first stage in every trademark application is demonstrating that you have used the mark in commerce or that you have “a bona fide purpose” to do so in the future.
Is a federal registration required for trademark protection?
States have their own trademark rules and databases for registering trademarks with state authorities. A state trademark registration, on the other hand, may only give protection in the state where the products or services are delivered. In comparison, a federal registration will protect your trademark across the United States.
The extent of the geographic region served determines whether a firm should register a trademark at all, and whether it should do so at the state or federal level. If your market is confined to the town in which you operate, state registration or no registration may be appropriate. If you operate in numerous states or sell items on the internet in the United States or throughout the globe, a federal registration with the USPTO may be a smart option.
What distinguishes a trademark from a copyright?
Trademarks and copyrights are similar in that they both provide the owner the exclusive right to use the protected content in most circumstances. They vary in the materials they protect.
As previously stated, trademark law protects words, phrases, logos, and graphics used to identify a product or service. Maintaining trademark protection requires the use of a mark in commerce. In reality, a person’s trademark protection might be revoked if they do not utilize it for an extended period of time.
Copyright protects creative works including films, pictures, paintings, books, poetry, music, and software code. The art must have some substantial form, either physical or digital. Concepts cannot, by themselves, be copyrighted. In contrast to trademarks, a copyright owner is not required to utilize the copyrighted work in order to preserve protection. It is not required, for example, to publish a book in order to keep the work’s copyright protected.
Can I keep my trademark if another company uses it first?
In the United States, trademark protection is predicated on first use of the mark, therefore the dates that the first user can establish they utilized the mark are crucial. Nonetheless, the geographical region and kind of goods or service associated with the mark may also play a role in determining who owns the rights to a mark. Even if someone else has used the same or similar trademark for a totally unrelated product or service, such as tax preparation services, it may be permissible to register a specific mark for use with, example, sporting gear. If someone has previously used a mark but only in one state or region, it may be feasible to get trademark protection in a different location.
Can I prevent a company from utilizing a trademark that is identical to mine?
Even if the two marks are not identical, trademark infringement may occur if they are highly similar and offer comparable or related products or services. A mark cannot be so similar to an existing trademark that consumers would be confused. When a trademark owner learns of a similar mark being used in commerce, the first step is to write a Cease and Desist Letter to the person using the similar mark, requesting them to cease using their mark. Additional steps can include entering into a co-existence agreement, which defines distinct areas of operation and types of use, or, if further escalation is required, the owner of the mark can file a trademark infringement lawsuit and ask a court to determine who has rights to the trademark for specific goods or services.
