What is a Trademark? Think of a trademark (or servicemark for services) as a word, phrase, symbol or design the identifies and distinguishes one source of goods or services from another. It is not necessarily the name of your company but the mark that you use to identify your goods or services.
Why Register a mark? In general terms, if you have such a mark and you have used the mark in commerce you already own it. Trademark rights come into being upon use in commerce – not upon registration as many people believe. However, registration with the United States Patent and Trademark Office (USPTO) provides protection in many ways that most people feel are worth the comparatively reasonable expense. The benefits of Federal Registration are:
· constructive notice to the public of the registrant’s claim of ownership of the mark;
Essentially, this means that while you may own the mark in advance of registration, it becomes somewhat difficult to enforce the ownership of your mark against another person if you do not have access to Federal courts to enforce the mark – or at least so that you have the threat that you may do so if necessary. Also, given that registering the mark affords you the “legal presumption” of the ownership of your mark and that your mark becomes publicly searchable by all those that are interested in such things, the likelihood of an unintentional infringement is reduced significantly.
What does it cost to Register a
Can I register a mark before I start using it? Recognize that you may file an application even before you start using the mark. This is called an “Intent to Use” application and is quite common. Once approved you have 6 months to prove your use of the mark. This way, when you have that sudden spark of inspiration for a new product or service name, you can immediately protect the mark so that when you finally start using it your claim will pre-date anyone that came up with the same idea in the meantime. The process typically takes about 8 months so filing an Intent to Use application is not a bad idea if you are just getting started.
Do I need a Lawyer? You do not need an attorney to register your mark. However, we have had many clients come to us after having their application rejected by the Examining Attorney. This can significantly delay and/or complicate your registration. In addition, if you represent yourself, be certain that you comply with all requirements of the trademark statute and procedural rules.
May I use the TM, SM, ® Symbol? Prior to your successful registration you may NOT use the ® symbol. This is a designation for marks that have achieved a Federal Registration only. Up to that point in time you may label marks in which you claim ownership with either TM or SM as long as the use of those designations is not otherwise prohibited in your State.