Intellectual Property Introductory Series: Trademark Basics | Levinfeld Pearlstein, LLC

Intellectual Property Introductory Series: Trademark Basics |  Levinfeld Pearlstein, LLC

Intellectual property laws can be confusing and overwhelming. To help you navigate this complex web, we offer an introductory series on intellectual property to share the foundations of intellectual property laws, including: PatentsTrademarks, copyrights and trade secrets.

A brand can be anything A word, name, symbol or device (such as logo, image, tagline, color, shape, sound, etc.), including combinations of these elements. The main function of a brand is Recognition and discrimination the Goods and/or services Trademark owner from others and to Indicate the source Those goods and/or services, even if their source is unknown.

The term “trademark” is often used to refer collectively and colloquially to both trademarks and service marks. But a trademark technically refers to a mark used with goods, while a “service mark” refers to a mark used with services. This article uses the term “trademark” generally to refer to both trademarks and service marks.

In the United States, trademarks are protected by federal and state laws, and trademarks can be registered at both the federal and state levels. However, in the United States, trademarks do not need to be registered in order to exist or be enforceable. Unregistered trademarks may receive limited protection in the United States under common law. However, there are significant advantages to registering a mark under federal law if the mark qualifies for federal registration.

Advantages of trademark registration

Although registration is not required to obtain a protectable mark or to use such a mark in commerce, it is highly recommended. Registering federal trademarks with the Principal Registry provides several advantages, including:

  • Constructive notice to the public of the registrant’s claim to ownership of the mark.
  • Ability to use the Federal Trademark Registration Symbol®.
  • The legal assumption of ownership of the mark and the exclusive right to use the mark at the national level in relation to the goods and/or services included in the registration.
  • Assuming you have the right to sue for infringement in federal courts and possibly receive enhanced damages.
  • The possibility of using registration as a basis for obtaining trademark registrations in foreign countries.
  • Possibility of registering registration with US Customs and Border Protection to prevent the importation of infringing goods.

Restrictions on trademark registration

There are limits to the types of trademarks that can be registered. For example, the following no Registerable as a trademark:

  • The flag, coat of arms, or emblem of the United States, states, municipalities, or other nations.
    • The name, photograph, or signature that identifies a living individual, except with his or her consent.
    • Marks that are substantially similar to any other preceding marks and are likely to cause confusion, error or deception.
    • Tags that primarily contain a geographically deceptively incorrect description (for most of these tags).
    • Marks that are used only for decoration or embellishment and not to indicate the source.
    • Descriptive marks or titles unless such marks have become associated through commercial use with a single source in the minds of consumers.

Trademark rights

In the United States, trademark rights generally commence on the date of the first use of the mark. However, if an application is filed for federal registration based on a bona fide intent to use the mark prior to use, and the registration is ultimately issued in the master registry, the registrant will have a nationwide first use date as of the filing of the intent to use application.

Federally registered trademark rights include the right to exclude others from the commercial use of any reproduction, imitation, reproduction or color imitation of a registered mark in connection with the sale, offer for sale, distribution or advertising of any goods or services where the use is likely to cause confusion or Error or deception. This includes use on labels, signs, literature, packaging, wrappers, containers, or advertising intended for use in commerce.

Trademark duration

US trademark rights can exist indefinitely as long as the mark continues to be used and qualifies as a trademark. If a mark is registered, the registration can be maintained and renewed indefinitely, again, as long as the mark continues to be used for the registered goods and/or services, and appropriate maintenance filings are made with the applicable trademark office(s). More importantly, trademark rights can be lost (abandoned) if the mark is not used. In the United States, three years of non-use, plus an intention not to resume use, is also considered At first glance Evidence of abandonment.

Tips and advice on trademark practice

First, before using and investing in a trademark, conduct proper trademark research to reduce the risk that the proposed mark will infringe the trademark rights of another party.

Second, if you plan to market a good and/or service in countries outside of the United States, secure the trademark in those countries before doing so. It is important to note that although rights in the United States generally begin upon use of the mark, this does not apply to many foreign countries where trademark rights are created solely by registration.

Finally, trademark conflicts arise when one party uses a mark that creates potential confusion between a consumer and another party’s trademark. The marks do not need to be identical, so changing two letters from another party’s trademark may cause confusion.

(See source.)

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