A trademark is any word, phrase, logo, or other symbol that is used to distinguish one product from another, as well as its producer or seller. Typically, a trademark sets one product and its producer apart from another.
Conduct a trademark search before registering your mark to find out if another company or entity is already using the same name. You don’t want to choose a name for your company, run advertisements, produce brochures and other materials, and then be compelled to change the name.
Typical Trademark Types
There are numerous varieties of trademarks, including:
- Service Mark: A service mark advertises a certain sort of service rather than a commodity.
- Trade Dress: A product’s distinctive packaging or trade dress may be distinguished.
A collective mark is a symbol, term, or phrase that is used to identify a group, organization, or association as well as the people, goods, or services the group offers.
A certification mark is a name or symbol that ensures the caliber of a service or product provided by another party.
What Is a Search for a Trademark?
You should carry out a trademark search to see if a similar trademark already exists before deciding to use a specific trademark or name. You risk being charged with damages and the registered owner’s legal costs if you use a trademark that is identical to or confusingly similar to another person’s registered brand. Even if you were unaware of the registered trademark, a court would typically assume that the owner of an unregistered trademark was aware of it.
Before submitting an application to the USPTO, a trademark name or brand should be thoroughly checked to see if another party has previously used it. The name may have to be changed if an appropriate trademark search is not conducted.
The following approaches can be used to do a trademark search:
- Use the US Patent and Trademark Office’s website to do your own search for trademarks.
- Conduct an online search to find out if the trademark name is being used by someone else.
- Use a paid trademark search service like Thomson’s SAEGIS that searches trademark databases for related trademarks.
- In addition to the federally registered trademarks listed on the USPTO website, conduct a search of your state’s trademark database.
Consult a lawyer to assist you in searching for available and unavailable trademarks.
What Characterizes a Trademark as Unique?
A trademark must be distinctive to be registered. Whether a trademark is descriptive, generic, suggestive, or arbitrary influences its distinctiveness.
Setting Up a Trademark
A trademark or service mark should be registered with the US Patent and Trademark Office because, after a trademark is registered, the owner will be protected from others who want to copy or duplicate the trademark and because the official registration notifies the rest of the nation that the particular trademark has already been discovered and registered.
The creator of the trademark must plan to use the trademark on goods or services that are used nationwide and have an impact on trade and commerce to register the trademark with the US Patent and Trademark Office.
If the trademark is identical to or similar to an existing brand or goods or services related to it, it cannot be registered with the USPTO.
Trademark Violation or Dilution
A trademark has rights under federal law if it is used without authorization. The trademark is guarded against infringement when someone uses the same or a similar trademark for a comparable good or service. This is known as infringement.
Trademark dilution happens when a well-known trademark is used for a different service but does so in a way that either damages the reputation of the trademark or diminishes consumer associations between the trademark and the services.
When is it Possible to Protect a Trademark?
A trademark must meet the following requirements to be protected:
- It must be registered with the United States Patent and Trademark Office (USPTO), the government body responsible for managing trademark registrations;
- Associated with a good or service marketed in the market, and
- Be distinctively appropriate.
What Are the Differentiation Levels for Trademarks?
There are five basic groups into which trademarks can be divided. There is no trademark protection for the first two categories, generic and descriptive. A trademark must belong to one of the last three categories to be protected.
The following categories for trademark distinctiveness:
There is no trademark protection for generic trademarks. Generic trademarks distinguish the product to which they are tied by using ordinary words, names, symbols, emblems, or other devices. An illustration would be to trademark the word “fruit” for an apple. Since “fruit” is a term that is frequently used to describe an entire class of goods and only describes the group that contains the apple, it would not be protected as a trademark. It’s a general phrase.
Additionally, descriptive trademarks are not protected by trademark law. Using words, names, symbols, logos, or other devices often used to represent the good or service to which they are associated is a descriptive trademark. The use of the word “fax” in the brand name of a home communication system is one illustration. The term “fax” is frequently used to describe both the technique of communicating in writing and the subject of that communication. It would not be a trademark if it were used to identify a particular commodity or service.
The classification of suggestive trademarks is ambiguous. Although suggestive trademarks are protected, it can be challenging to tell them apart from descriptive trademarks. The fundamental distinction between the two is that suggestive trademarks leave it up to the consumer’s imagination to determine the nature of the good or service, as opposed to having the name, symbol, or emblem make it clear and unmistakable.
Arbitrary trademarks and fantastical trademarks share many similarities. The primary distinction is that the term, name, symbol, logo, or other design element used to identify the goods may also be used to identify completely unrelated items. Arbitrary trademarks continue to be protected by trademark law.
One illustration is the “polo player” emblem used by the Ralph Lauren Corporation on various goods, including fragrances and t-shirts. A polo player may be used to describe the game, but its association with a number of goods aimed at men makes it distinctive enough to be protected as a trademark.
Typically, the most distinctive trademarks fall into the fantastical type. They are made up of original words, names, symbols, logos, or other objects that were created specifically for the product with which they are associated. Fantasies are awarded the highest level of trademark protection. Apple’s iPod illustrates a whimsical trademark because it cannot be used to describe any other product. It is a brand-new trademark name designed to be used on just one standout product.
Trademarks are divided into 45 separate classes by the USPTO. There are 11 classes for services and 34 classes for goods. The USPTO uses these classifications to distinguish between and maintain track of thousands of new trademarks it registers annually.
Should I Get Legal Advice on My Trademark Issue?
The timelines and specifications for registering a trademark are intricate and stringent. You can get the assistance of a skilled trademark lawyer to meet all the deadlines and specifications.
A trademark attorney can also participate in ongoing investigations to ensure that nobody else is misusing or weakening your trademark without your consent. Additionally, distinctiveness is necessary for federal registration. This means that the mark must determine the source of your items.