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Trademarks are forms of intellectual property which protect the identifying marks that distinguish goods and services. In order to be considered a trademark, the identifying mark must be known by consumers. Trademarks protect consumers by avoiding confusion of who to deal with and purchase from.
Whenever a business or product name is used on packaging, a label, a sign, an Internet site, or in any way advertised to the public, it falls within the arena of trademark law. For instance, when a small business uses its mark in advertising a product or service in the local newspaper, it becomes subject to trademark law. Almost all businesses are subject to the complex body of Trademark law. It is therefore vital that business owners become aware of their rights, duties, and obligations in relationship to Trademark Law.
A trademark (or "mark") is any word, term, name, design, slogan, symbol or other distinctive item that serves to identify a specific product brand. A "service mark" is any word, term, name, design, slogan, symbol or other distinctive item that serves to identify a specific brand of service. Trademarks and service marks are treated identically under the law.
Use of a trademark establishes rights to it. If use of a trademark can be shown, even trademarks that are not registered are entitled to "common law" rights. Absent federal registration of a trademark however, these common law rights will only extend to the geographic area in which the trademark is being used. Federal Trademark registration extends these rights nationwide. It is also far easier and less costly to prevail in an infringement action if a trademark is federally registered. Typically it is also far easier to collect damages and/or attorneys' fees against an infringing party. By failing to federally register your trademark, you will likely face an uphill battle in the event of a legal challenge against your trademark.
Additional advantages to obtaining Federal Trademark Registration include the right to put the registration notice; after the mark, which notifies others of your trademark registration.
Because registering a trademark requires extensive knowledge of trademark law and procedures it is highly recommended that you use the trademark services of a trademark lawyer. A trademark lawyer can advise you on many aspects of your trademark filing and on trademark services. For example:
A trademark lawyer should be used when choosing a product name trademark or a trademark slogan. A trademark lawyer can order a trademark search report. Your trademark lawyer should then counsel you on the results of the trademark search and whether it is safe to proceed with using the proposed trademark. You trademark lawyer should also counsel you on any questions you may have, such as how to get a trademark, the cost to register a trademark and how to trademark a logo or trademark slogan.
A trademark attorney should then help you draft the trademark application. A trademark attorney can help you ensure that your trademark application is complete. Your trademark attorney should review your specimen and drawing page to determine that they satisfy the requirements of the USPTO (United States Patent and Trademark Office).
A trademark lawyer should be able to work with the USPTO to answer any objections the trademark lawyer for the USPTO may have with your trademark application. Your trademark lawyer should write briefs that address any initial objections to register the trademark.
A trademark attorney can advise you on how to handle certain situations such as receiving or drafting a cease and desist letter. A cease and desist letter is written when a party believes their trademark is being infringed upon. A cease and desist letter should be evaluated by a trademark attorney who will provide you with trademark assistance.
Trademarks are generally distinctive symbols, pictures, or words that sellers affix to distinguish and identify the origin of their products. Trademark status may also be granted to distinctive and unique packaging, color combinations, building designs, product styles, and overall presentations. It is also possible to receive trademark status for identification that is not on its face distinct or unique but which has developed a secondary meaning over time that identifies it with the product or seller. The owner of a trademark has exclusive right to use it on the product it was intended to identify and often on related products. Service-marks receive the same legal protection as trademarks but are meant to distinguish services rather than products.
In the United States trademarks may be protected by both Federal statute under the Lanham Act, 15 U.S.C. 1051 - 1127, and states' statutory and/or common laws. Congress enacted the Lanham Act under its Constitutional grant of authority to regulate interstate and foreign commerce. See U.S. Constitution, Article 1, Section 8, Clause 3. A trademark registered under the Lanham Act has nationwide protection. See 1115 of the Act.
Under the Lanham Act, a seller applies to register a trademark with the Patent and Trademark Office. The mark can already be in use or be one that will be used in the future. See 1051 of the act. The Office's regulations pertaining to trademarks are found in Parts 1 - 7 of Title 37 of the Code of Federal Regulations. If the trademark is initially, approved by an examiner, it is published in the Official Gazette of the Trademark Office to notify other parties of the pending approval so that it may be opposed. See 1062 - 1063 of the Act. An appeals process is available for rejected applications. See 1070 - 1071 of the Act.
Under state common law, trademarks are protected as part of the law of unfair competition. Registration is not required. See Unfair Competition. States' statutory provisions on trademarks differ but most have adopted a version of the Model Trademark Bill (MTB) or the Uniform Deceptive Trade Practices Act (UDTPA). The MTB provides for registration of trademarks while the UDTPA does not.
Further protection of trademarks is provided by the Tariff Act of 1930. See 19 U.S.C. 1526.
Trademarks are judged on priority basis, meaning the first person to come up with and use that identifying mark has the right to claim that mark. It may be a difficult process to attain trademark protection if your business deals with multi-state operations. The federal registration process is complex and you may need assistance in planning your claim.
If you have questions about getting trademark protection for your business, a trademarks lawyer can help you. If you are ready to apply for federal trademark registration, or suspect trademark infringement action, an experienced trademark attorney can be useful in evaluating the situation at hand and recommending the next steps. A trademarks lawyer will work with you in order to ensure that your financial rights are protected.
If you need help with your trademark registration or suspect trademark infringement, contact Attorney Search Network today. Attorney Search Network can refer you to a trademarks lawyer near you.
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