lawyer explains what is a trademark?

A trademark is generally a phrase or design that identifies and distinguishes the source of goods or services. Trademark law is meant to protect not just the company that owns a trademark but also the general public.

Full Answer

What is a trademark and how does it work?

A trademark not only gives the trademark owner the exclusive right to use the mark but also allows the owner to prevent others from using a similar mark that can be confusing for the general public. A trademark cannot, however, prevent another person or company from making or selling the same goods or service under a clearly different mark.

Who is the owner of a trademark?

A trademark may be owned by any person, business, organization, or other legal entity. Trademarks are commonly used on company letterhead, business cards, and forms. They also appear on labels, packaging, and products, in addition to signs and buildings.

What happens when a trademark is registered in the US?

For example, federal registration of a mark gives rise to the legal presumption that the registrant is in fact the trademark owner. Federal registration also allows a trademark owner/registrant the ability to file a lawsuit related to the mark in the federal court system.

What is trademark protection?

Trademark protection is available for certain names, symbols, devices, or words that will be used in connection with a good or service. Technically, if a certain mark is associated with a service, it is called a "service mark," but trademark is commonly used to refer to both marks associated with services and goods.

How does the law define trademarks?

Definition. A trademark is any word, name, symbol, or design, or any combination thereof, used in commerce to identify and distinguish the goods of one manufacturer or seller from those of another and to indicate the source of the goods. See 15 U.S.C. § 1127.

What is a trademark in simple terms?

A trademark can be any word, phrase, symbol, design, or a combination of these things that identifies your goods or services. It's how customers recognize you in the marketplace and distinguish you from your competitors. The word “trademark” can refer to both trademarks and service marks.

What is the purpose of a trademark?

A trademark protects the specific, unique name, logo, and symbols pertaining to your products or business brand. Trademark protection may apply to business names, symbols, logos, sounds, and even colors that are emblematic of one specific brand.

What are the 3 types of trademarks?

What you'll learn:Arbitrary and Fanciful Trademarks.Suggestive Trademarks.Descriptive Trademarks.

What is the difference between trademark and registered?

What is Trademark vs. Registered? The trademark symbol (TM) is a mark that companies often use on a logo, name, phrase, word, or design that represents the business. The registered symbol (R) represents a mark that is a registered trademark with the United States Patent and Trademark Office (USPTO).

What must a plaintiff prove in a successful trademark infringement case?

What must a plaintiff prove in a successful trademark infringement case? Defendant infringed plaintiff's mark. Defendant used the mark in an unauthorized manner. The use of the mark is likely to cause confusion or deception of the public as to the origin of the services or goods.

What is the most common reason that a trademark might be rejected?

Likelihood of confusion is the most common reason an application will be rejected by the USPTO. Essentially, if there is a high probability that the general public will confuse your trademark with someone else's (already existing) trademark, your registration will not be granted. The two marks need not be identical.

What is the benefit of registering a trademark?

Registration provides nationwide priority over all others who might seek to adopt the registered mark. Registration significantly reduces the costs of enforcing trademark rights. Registration provides for enhanced protection against counterfeiters, cybersquatters, and importers of infringing product.

Do you really need a trademark?

Registering your business name for a trademark isn't required in order for you to have trademark rights. However, a registered trademark can provide greater protection for your brand while helping you build your brand and drive business growth.

What are some 5 examples of trademarks?

Some other standard character format examples include:Under Armour®Twitter®It's finger lickin' good! ®Just do it®America runs on Dunkin'®

How much does it cost to trademark?

The cost of registration per application is about Rs. 4000. If any person is registering its brand or register logo under many categories, then he/she have to pay Rs. 4000 per category.

What is an example of a trademark?

Brand names like Apple, McDonald's, and Dolce & Gabbana. Product names like iPod and Big Mac. Company logos like the golden arches at McDonald's and NBC's peacock logo.

Why do we have trademark rights?

Trademark rights may be used to prevent others from using a confusingly similar mark, but not to prevent others from making the same goods or from selling the same goods or services under a clearly different mark.

What is a trademark in commerce?

A trademark is any word, name, or symbol used in commerce to identify and distinguish a business's product or merchandise, and to indicate their source. A trademark can be considered a business's brand name, and use of a trademark without permission can be considered infringement of the trademark holder's rights.

What are the benefits of trademark registration?

Some of the benefits of federal trademark registration include: Constructive notice nationwide of the trademark owner's claim. Evidence of ownership of the trademark. Jurisdiction of federal courts may be invoked. Registration can be used as a basis for obtaining registration in foreign countries.

What is the difference between trademarks and copyrights?

Copyrights cover literary, artistic, and musical works. Trademarks are brand names and/or designs which are applied to products or used in connection with services. Some of the benefits of federal trademark registration include:

What is trade dress?

Trade dress isn't limited simply to boxes, but can include distinctive use of color, shapes and even décor. The goal of trade dress overlaps significantly with the goals of trademark law: to identify goods or products through distinctive features and reduce customer confusion.

What is a SM mark?

Using Trademark Symbols. Any time you claim rights in a mark, you may use the "TM" (trademark) or "SM" (service mark) designation to alert the public to your claim, regardless of whether you have filed an application for registration of the mark.

When to use the symbol "®"?

However, you may use the federal registration symbol "®" only after the U.S. Patent and Trademark Office actually registers a mark, and not while an application is pending. Also, you may use the registration symbol with the mark only on or in connection with the goods and/or services listed in the federal trademark registration.

What is a trademark in business?

A trademark is used for goods, while a service mark is used for services. A trademark: Identifies the source of your goods or services. Provides legal protection for your brand.

Why do we need a trademark?

A common misconception is that having a trademark means you legally own a particular word or phrase and can prevent others from using it.

What is the symbol for a trademark?

Using the trademark symbols TM, SM, and ®. Every time you use your trademark, you can use a symbol with it. The symbol lets consumers and competitors know you’re claiming the trademark as yours. You can use “TM” for goods or “SM” for services even if you haven’t filed an application to register your trademark.

Do you have rights to a word?

However, you don’t have rights to the word or phrase in general, only to how that word or phrase is used with your specific goods or services. For example, let's say you use a logo as a trademark for your small woodworking business to identify and distinguish your goods or services from others in the woodworking field.

What is trademark infringement?

Trademark infringement is the unauthorized use of another business’s trademark. The main question in a trademark infringement case is whether or not the use is likely to cause confusion among consumers.

Do you need to register a trademark?

Contrary to popular belief, it is not a legal requirement to register your trademark in order to receive any kind of protection. If you use a trademark in commerce without registering it, you are still afforded common law protection under unfair competition laws. Typically, these laws give you protection in a specific geographic area. For example, if you owned Smiley’s Sandwich Shoppe, another Smiley’s Sandwich Shoppe couldn’t open right down the street from your business, even if you aren’t federally trademarked.

What is a trademark?

A trademark is a symbol, design, word, or phrase that identifies one business’ goods or services from those of another. A company may come up with a design that is unique, to stand as a symbol of the company, or a product. For example, McDonald’s has a trademark that is recognized worldwide – a giant yellow “M.” Trademarks in the U.S. are registered with the U.S. Patient and Trademark Office, which protects them from being used by others to promote their own agendas. To explore this concept, consider the following trademark definition.

Who owns a trademark?

A trademark may be owned by any person, business, organization, or other legal entity. Trademarks are commonly used on company letterhead, business cards, and forms. They also appear on labels, packaging, and products, in addition to signs and buildings.

How to apply for a trademark in the US?

Each trademark application and proposed trademark is examined by a USTPO attorney , and a letter is sent to the applicant as to its status. If additional information is requested, the applicant will have a limited amount of time to provide it. If the information is not forwarded within the time limit, the application will be deemed abandoned. Once the trademark application has been approved, the mark is published in the agency’s “Official Gazette.”

Why is it important to search for a trademark?

Before submitting a trademark for registration, it is important to ensure it has not already been registered by someone else. The U.S. Patent and Trademark office makes its database available to everyone who desires to do a trademark search. Properly entering a description of the mark, including the specific design, colors, words, and other symbols is a specialized process. Because trademarks are governed by federal, state, and common law, a thorough search is important, and may require the use of an attorney specializing in intellectual property.

What is the USPTO?

The United States Patent and Trademark Office (“USPTO”) is the federal agency responsible for the granting of patents, and registering of trademarks.

How to add a trademark symbol to a document?

Trademark symbols may be added to documents, emails, and web pages using an ASCII keyboard code. To do this on a Windows computer, hold down the “Alt” key, and use the number pad to press the numeric code. When the last number is entered, release the Alt key, and the symbol will appear. ™ = Alt+ 0153. ® = Alt+ 0174.

What is the symbol for a registered trademark?

Registered trademark symbol appears as the letter “R” enclosed in a circle [ ® ], also in superscript placed immediately after the mark.

What can a trademark lawyer do?

A trademark lawyer can help you protect your business’s intellectual property assets such as a symbol or logo. Many or all of the products featured here are from our partners who compensate us. This may influence which products we write about and where and how the product appears on a page.

How to protect your trademark?

The best way to protect your trademark is by registering it with the United States Patent and Trademark Office. While it’s possible to register a trademark on your own, most businesses that go through this process, especially those registering a trademark for the first time, are represented by a trademark attorney.

What is the part of trademark registration that could make or break your case?

Out of all parts of the trademark registration process, the part that could “make or break” your case is the trademark search. This is when the lawyer searches for other trademarks that could be found confusingly similar to yours. It’s a common reason that trademark applications are rejected.

How much does a trademark attorney charge?

Trademark attorneys can charge around $500 to $2,000 for the full trademark application process and an additional $400-$500 if any delays or disputes arise in your case. In addition to the fees charged by the trademark lawyer, you’ll have to pay several hundred dollars in government filing fees.

How much does LegalZoom cost?

LegalZoom: This is a low, fixed-cost option for trademark search, registration and monitoring. Prices start at $199 for basic services. If you sign up for LegalZoom‘s monthly plan, it will also connect you to a local attorney who can respond to USPTO actions on your behalf.

What is it called when someone uses your trademark without your permission?

Taking action if you believe someone else is using your trademark without your permission (called trademark infringement).

What is the test for trademark eligibility?

The test for trademark eligibility is whether there’s a “likelihood of confusion” between your mark and another mark. If there’s a similar logo or mark being used by one of your competitors, the likelihood of confusion is high.

What is trademark law?

Mondaq describes trademark law as the practice of providing legal advisement for the attainment of trademarks on goods or services without infringing on other registered trademarks secured by others. They help walk you through the process to ensure that your application for a registered trademark does not infringe on existing trademarks. This type of lawyer can help you avoid legal problems when sought early before marketing your goods or services. Trademark lawyers also advise clients on remedies when an infringement occurs. The attorneys practicing this specialization may lead you forward in your lawsuit against an infringer or help defend you if they sue you for trademark infringement.

What exactly does a trademark infringement lawyer do?

According to UpCounsel, this type of attorney protects the rights of any client who holds a trademark for a service or product. An example of a trademark is the Nike swoosh symbol. These lawyers are fully prepared to interpret the trademark law to ensure your rights are protected from infringement. Your trademark infringement attorney can tell you if an individual or company has used similar marketing content, business, or domain names or is selling counterfeit goods under your trademark. The attorney can tell you if you have grounds to file a lawsuit. An infringement attorney can let you know if it is worth your time to pursue a case, based on knowledge of the potential for a win, including damages you could receive compared with the legal cost of pursuing a case. In many cases, attorney fee compensation is also awarded as a part of the damages settlement. A trademark infringement lawyer is aware of precedent cases set for trademark infringement lawsuits. They are aware of various types of cases that have gone to court, and the outcomes of those cases. They stay on top of the latest information as it pertains to the laws about trademarks, and the ways that the laws are interpreted legally. These lawyers know how to help you recover damages when someone crosses the line with your protected intellectual property.

Using Trademark Symbols

• Any time you claim rights in a mark, you may use the "TM" (trademark) or "SM" (service mark) designation to alert the public to your claim, regardless of whether you have filed an application for registration of the mark. However, you may use the federal registration symbol "®" only after the U.S. Patent and Trademark Office actually registers a ma...

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