A trademark is a word, phrase, logo or other symbol, used to identify a product, the source of a product and the manufacturer or merchant. A trademark is usually used to distinguish one product and its manufacturer from another.
Before registering your trademark, it is important to run a trademark search to determine whether another business or entity is already using the same name. You do not want to come up with a business name, run ads, create brochures and specific items and later on be forced to change the name.
Common Types of Trademarks
There are many types of trademarks, such as:
- Service Mark - Rather than promoting a product, the service mark promote a particular type of service
- Trade Dress - A product is sometimes known for its special packaging, or trade dress
- Collective Mark - A collective mark is a symbol, word, or phrase used to identify a group, organization or association, and the products, services or members of the group
- Certification Mark - A certification mark is a symbol or name used to guarantee the quality of another's service or product
What Is a Trademark Search?
Before you decide to use a particular trademark or name, you should conduct a trademark search to determine whether a similar trademark already exists. If you use a trademark that is similar to, or the same as, another person's registered trademark, you can be held liable for damages and the registered owner's attorney fees. Generally, a court will presume that the unregistered trademark owner knew about the registered trademark, even if you did not.
A trademark name or brand should be adequately searched before a application is filed with the USPTO to determine whether the trademark is already being used by someone else. Failure to do a proper trademark search could result in being forced to change the name.
A trademark search can be performed by the following methods:
- Do your own search of trademarks registered by the U.S Patent and Trademark Office on their website.
- Do an Internet based search to determine if the trademark name is being used by someone else.
- Use a fee-based trademark search agency that uses trademark databases for similar trademarks such as Thomson’s SAEGIS.
- Do a search of your state’s trademark database in addition to the federally registered trademarks found at USPTO’s website.
- Work with an attorney to help you search for available and unavailable trademarks.
Registering a Trademark
A trademark or service mark should be registered with the U.S Patent and Trademark Office because after a trademark is registered, the founder of the trademark will be protected against other people who want to copy or duplicate the trademark and the official registration also put the rest of the country on notice that the specific trademark has already been discovered and registered. To register a trademark with the US Patent and Trademark Office, the founder of the trademark must intend to use the trademark on products or services that is used nationally and effects trade and commerce.
The trademark cannot be registered with the USPTO if:
- Trademark is identical or similar to an already existing trademark or related goods/service.
- Trademark is on the list of prohibited or reserved list.
- Trademark is too descriptive and does not qualify for protection.
Once the Patent and Trademark Office has approved the trademark, it will be registered for a term of ten years. Six years into the ten-year period, the owner must then file a form stating that the trademark is still in use. Otherwise, the registration may lapse.
Trademark Infringement or Dilution
Federal law offers protections for a trademark if someone uses it without permission. The trademark is protected from:
- Infringement - Infringement occurs when someone uses the same or similar trademark for a similar good or service
- Dilution - Trademark dilution occurs when someone uses a well-established trademark for a different service, but either tarnishes the trademark's good name through the use or weakens the consumer's association between the trademark and the services
Should I Consult an Attorney about My Trademark Issue?
An intellectual property attorney can help you meet all the deadlines and fulfill all the requirements. A lawyer can also participate in on-going research to make certain no one else is using or diluting your trademark without your permission. Additionally, if you have an issue of trademark dilution or infringement, an attorney can guide you through the difficult and strict procedural requirements for litigation and bring out the core of your case.