Trademarks

A trademark includes any word(s), name, symbol, or device, or any combination, used or intended to be used, in commerce to identify and distinguish the goods manufactured or sold by others, and to indicate the source of the goods. In short, a trademark is a brand name or brand identity.

A service mark is any word(s), name, symbol, device or any combination, used or intended to be used, in commerce, to identify and distinguish the services of one provider from the services provided by others, and to indicate the source of the services.

Trademarks and service marks can be registered in the U.S. Patent and Trademark Office. A federal registration provides evidence of ownership of a mark, and of the registrant's exclusive right to use the mark in commerce on the goods and/or services specified in the registration certificate. The owner of a federal trademark/service mark registration may file a lawsuit in federal court against others who adopt the same or a confusingly similar mark. If the federal court finds that there is an infringement, the owner of the federal registration may be awarded injunctive relief, triple damages and attorneys fees. Additionally, the owner of a federal trademark registration has the right to request U.S. Customs Officials to seize imported goods bearing an infringing trademark.

In order to obtain a federal registration, it is necessary to file an application in the U.S. Patent and Trademark Office (USPTO). The trademark/service mark application may be based on actual use of the mark in commerce or, alternatively, on a bona fide intent to use the mark in commerce at a future date. After the trademark application is filed in the USPTO, it will be subject to examination by a trademark Examiner. The Examiner will determine whether the mark meets the requirements for registration under the federal statutory guidelines. The most common grounds for rejection of a mark for registration are: 1) the mark is merely descriptive of the goods or services, or 2) the mark is confusingly similar to another previously registered mark for similar goods or services. The process can be quite technical in nature, requiring a thorough knowledge of the trademark law. Accordingly, it is highly advisable to hire the services of an attorney with expertise in matters of trademark and unfair competition law.

A federal trademark registration has renewable 10-year terms (provided that an affidavit of continued use is filed in the U.S. Patent and Trademark Office between the fifth and sixth years after registration).