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Trademark Law Basics

Intellectual property results from exercise of the faculties of the mind. For example, intellectual property may be a product name, product color, company logo, or other identifier of the source of a product or service. These forms of intellectual property are protected by trademark law. Trademark law protects the owner of the trademark against unauthorized commercial use of the trademark, or a confusingly similar trademark, by others. Commercial use of another's trademark, or a confusingly similar trademark, constitutes trademark infringement.

More specifically, a trademark is any word, name, symbol, or device, or any combination, used, or intended to be used, in commerce to identify and distinguish the goods of one manufacturer or seller from goods manufactured or sold by others, and to indicate the source of the goods. Trademarks may be in the form of distinctive packaging, color combinations, product designs, sounds and other indicia of the source of goods or services.

Trademarks & Service Marks
A service mark is the same as a trademark except that it distinguishes the source of a service rather than a product. The terminology "trademark" or "mark" is commonly used to refer both to trademarks and service marks. Trademarks which are used in interstate or foreign commerce may be registered with the U.S. Patent and Trademark Office. Trademarks may also be registered in individual states. However, many trademarks and service marks are not registered either federally or at the state level.

Trademark Search
Before one decides to use a mark to distinguish his goods or services, he should first perform a trademark search to see if the exact or confusingly similar mark is being used by another business or individual. A search for federally registered marks can be made at the U.S. Patent and Trademark Office website. However, it should be remembered that this database does not cover unregistered trademarks and service marks or state registered trademarks and service marks. In this regard, access to state registered trademarks and service marks can be obtained by submitting a request to the Secretary of State of the state where the mark may be registered. Unregistered marks can be found by searching other sources, such as yellow page and white page telephone directories, the Internet, and the Thomas Register of American Manufactures Website. Searches of Internet domain names can be made by visiting on-line websites, such as the one hosted by Network Solutions. Because the U.S. Patent and Trademark Office database is incomplete and because searching white and yellow pages and the Internet can be time consuming, one may want to engage the services of an intellectual property attorney or commercial search firm to perform the trademark search.

The Benefits of Having a Trademark
Trademark rights prevent others from using a mark that is the same or confusingly similar. However, the owner of the mark should realize that trademark rights do not prevent others from making or selling the same goods or services under a different mark.

How does the purported owner of a mark notify others that he is claiming trademark rights associated with a particular good or service? Such an individual or business owner may use the symbol "TM" for a trademark, or the symbol "SM" for a service mark, to put the public on notice that he claims ownership in the trademark or service mark. In this regard, the symbol "TM" or "SM" as a superscript should be used on marketing literature, the product itself, and anywhere else the product or service is marketed. For example, a hypothetical trademark might be the word "Acceleron™" for a faster computer chip or the phrase "Your First Choice for Computer Repair Services SM" for a computer repair service. However, the symbols "TM" or "SM" should only be used when the mark is unregistered. If and when the mark is registered in the U.S. Patent and Trademark Office, the symbol ® (the letter "R" in a circle) should be used in the form of a superscript. That is, after the mark is officially registered, the mark should be displayed as follows: "Acceleron®" or "Your First Choice for Computer Repair Services®." There is no symbol or designation to indicate state registration.

Common Misconceptions
A common misconception among trademark owners is that a trademark must be registered in the U.S. Patent and Trademark Office to perfect exclusive rights in the mark. This is not the case. It is more accurate to state that trademark rights are established based on legitimate use or intended use of the mark in a business or commercial setting. For example, an unregistered trademark lasts as long as the unregistered trademark is in continual use. After a trademark is registered, an affidavit must be filed with the U.S. Patent and Trademark Office to maintain the registered trademark in force. The affidavit, which must be filed between the fifth and sixth year after registration, must establish continual use of the mark or the registration will be canceled. In addition, the registered mark must be renewed every 10 years or the registration will expire. Therefore, the trademark owner should keep careful track of his trademark registration status or engage an intellectual property attorney or trademark service company to do so.

One might ask what are the benefits of trademark registration? Registration puts the public, including potential competitors, on constructive notice that one is claiming ownership of the trademark. Registration is also evidence of ownership during litigation. In addition, registration in the U.S. can be a basis for obtaining registration in foreign countries. Moreover, it should be noted that separate registration may be filed with the U.S. Customs Service to prevent importation of infringing foreign goods.

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