Collective Marks

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 What is Intellectual Property Law?

Intellectual property laws are a set of statutes and laws that provide protections and privileges for inventors and owners of intellectual property. These laws are used to encourage and protect the creation of new ideas as well as the creation of new technologies.

In addition, these laws also encourage artistic creativity for the economic growth and prosperity of the United States. Because of the numerous protections that are granted by intellectual property laws, owners of intellectual property can have the confidence that their creative works and ideas will be protected and can be marketed.

There are several categories of intellectual property that fall under the umbrella of intellectual property law, including:

It is important to note that there are both state and federal protections that govern intellectual property issues. Many of these protections, however, including trademark protections, only apply when the intellectual property is properly registered.

What is a Trademark?

Trademarks are:

  • Words;
  • Phrases;
  • Logos; or
  • Other symbols.

Trademarks are used to identify:

  • Products;
  • Sources of products; and
  • Manufacturers or merchants of products.

Typically, a trademark is used to distinguish one product and that product’s manufacturer from other products. Prior to registering a trademark, it is important for an individual to run a trademark search in order to determine whether another entity or business is already using that same name. It may be expensive or even detrimental to a business if it already invested in creating a name, running ads, and creating brochures and other items and was later required to change the name and re-do all of these.

What are the Common Types of Trademarks?

There are several different types of trademarks, including:

  • Service marks: Rather than promoting a product, service marks promote particular types of services;
  • Trade dress: Products are sometimes known for their special packaging, or trade dress;
  • Collective marks: Collective marks are symbols, words, or phrases that are used to identify a group, organization or association, as well as the products, services or members of the group; and
  • Certification marks: Certification marks are symbols or names that are used to guarantee the quality of another’s services or products.

What is a Collective Mark?

Collective marks indicate either that goods or services are produced by members of a collective group or that there is membership in a particular group. There are two types of collective marks, including:

  • Collective trade, or service, marks: These types of marks are traditional marks in the sense that they indicate origin. They are not, however, as traditional in the sense that ownership of the mark is vested not in the producer or provider but in a group of which each producer or provider is a member; and
  • Collective membership marks: These are completely nontraditional because they do not serve any origination function. These marks are only used to indicate membership.

Can You have a Certification Mark and a Collective Mark?

Yes, an individual may have both a certification mark and a collective mark. These marks often become coextensive when membership in a group is founded upon or relates in some way to certain standards relevant to quality or regional origin.

For example, a group of wine producers that bases their membership requirements on region location may obtain a collective mark that indicates association with the group. Membership in the group inherently involves an identification of regional association.

In this situation, the mark then acts as both a collective mark and a certification mark.

Are there Similar Restrictions on Collective Marks as with Certification Marks?

In contrast to certification marks, there is not a bar against use by the owner with collective marks. For example, a group may register a mark for use by the members but may also apply that mark to its stationery, publications, or news releases.

What is a Trademark Search?

Prior to deciding to use a certain trademark or name, an individual should conduct a trademark search in order to determine whether a similar trademark is already in use. If an individual or business uses a trademark that is the same as, or similar to, another registered trademark, an individual may be held liable for damages in addition to the registered owner’s attorney’s fees.

In general, a court will presume that an unregistered trademark owner was aware of a registered trademark, even if they were not. Trademark names or brands should be searched before filing an application with the United States Patent and Trademark Office (USPTO).

As noted above, failure to conduct this type of search may result in a business being forced to change its name or related advertising. A trademark search may be performed using one of the following methods:

  • Doing a search of trademarks registered by the U.S Patent and Trademark Office on their website;
  • Conducting an Internet based search to determine if the trademark name is being used by another individual or business;
  • Using a fee-based trademark search agency that uses trademark databases for similar trademarks such as Thomson’s SAEGIS;
  • Doing a search of the state’s trademark database in addition to the federally registered trademarks found at USPTO’s website; and
  • Working with an attorney to help search for available and unavailable trademarks.

How Do I Register a Trademark?

A service mark or a trademark should be registered with the USPTO. Once a trademark is registered, the founder of that trademark will be protected against other individuals who desire to copy or duplicate the trademark.

In addition, that official registration also puts the rest of the U.S. on notice that the trademark has already been discovered and registered. In order to register a trademark with the USPTO, the founder of the trademark has to intend to use that trademark on products or services that are used nationally and affect trade and commerce.

A trademark cannot be registered with the USPTO if the trademark:

  • Is identical or similar to an already existing trademark or related goods or services;
  • Is on the prohibited or reserved list; or
  • Is too descriptive and does not qualify for protection.

Once the USPTO has approved a trademark, it will be registered for a term of 10 years. 6 years into that 10 year period, the owner will be required to file a form that states that the trademark is still in use.
If this form is not filed, the trademark registration may lapse.

What is Trademark Infringement or Dilution?

Federal laws offer protections for trademarks if they are used without the owner’s permission. Trademarks are protected from infringement and dilution.

Trademark infringement occurs when an individual uses the same or similar trademark for a similar good or service. Trademark dilution occurs when an individual uses a well-established trademark for a different service and, in so doing, either tarnishes the trademark’s good name through its use or weakens the consumer’s association between the trademark and the goods or services.

Should I Consult a Lawyer about my Trademark Issue?

The regulations and deadlines required for trademark registration are often detailed and strict. If an individual has any issues, questions, or concerns related to collective marks, it may be helpful to consult with a trademark lawyer.

Your lawyer can assist you with your application and ensure that you meet all of the deadlines and fulfill all of the requirements for registration. In addition, your lawyer can research to ensure that no other party is using or diluting your existing trademark without your permission.

If an issue of trademark dilution or infringement does arise, your attorney can guide you through the difficult and strict procedural requirements for litigation.

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