What is a trademark or a service mark?

A trademark or a service mark is a word or words; such as H&R Block, which is a service mark; shape, as in the shape of a Coca-Cola bottle, which is a trademark of the Coca-Cola Co.; color, such as the color blue when applied to sugar packets, which is a trademark of the Nutra-Sweet Co.; sound, such as the roar of a motorcycle engine, which has been trademarked by Harley Davidson, or picture/logo, such as the rainbow apple with a bite taken from it, which is a trademark of Apple Computer, that identifies a particular item, company, or service. Service marks protect services, such as tax prepartion, while tradeamrks tend to protect products and company names.

What are the benefits of federal trademark registration?

Federal registration grants the trademark owner access to federal court. In causes of action for trademark infringement of federally registered marks, profits, damages, and costs of the law suit are recoverable and triple damages and attorney÷s fees are available.

A federal registration may be grounds for stopping importation of goods bearing an infringing mark. Although protection is available for trademarks under state law, a higher degree of protection is afforded through registration of the mark in the U.S. Patent and Trademark Office. Federal registration allows the owner of the mark to display the familiar ® symbol thereby putting others on notice of trademark rights. Trademark rights are no longer restricted to state boundaries; a first user of a federally registered mark is entitled to nationwide protection.

Can I get a trademark myself or do I really need to pay an attorney to do it?

While it is not as difficult to prosecute your own trademark as it is your own patent, it is still wise to at least intially consult with an attorney who specializes in trademark law. Because the rules are so complicated, most applicants for trademarks prefer to have an attorney represent them before the Trademark Office.

What does it cost to file a trademark registration?

If you prepare and file your application yourself, you will simply have to pay the Government filing fee, which increases depending upon the number of classes you select. If you hire an attorney to file for you, you will be charged the attorney's fee for services as well as all Government fees.

The name of my company was approved when I incorporated. Doesn't this mean I'm free to use the name as a Trademark?

It is a common misconception is that if one has a corporate name approved by the Secretary of State (the state agency that regulates corporations) then this means one may freely use the name in commerce. This is simply not true. The reason that state approval of a corporate name is not enough, is that the state authorities are only concerned that there not be two identical corporate names. They are not at all interested in making "likelihood of confusion" comparisons. The Secretary of State leaves such comparisons to intellectual propety attorney as well as the U.S. Trademark Office. Thus, the Secretary of State will allow ABC Distributing Co. and ABC Distributions Co. to coexist simply because they are not identical, while it is doubtful that the two comapnies, if they knew of one another, would be so happy about the other's presence in commerce. Furthermore, a state agency only cares about one state. This means that there is probably a Mike's Pizza Inc. in most (if not all) of the states of the country. Another reason why getting approval from a state agency is insufficient is the fact that such agencies only concern themselves with business names, not trademarks. If you wanted to go into business as "Tide Soap Co." you probably would be permitted to do so by the state agency, but the big company that has TIDE as a trademark on its products would take a very different view. Intellectual property lawyers find themselves explaining this from time to time, typically after a client has received a "cease and desist" letter from a company that has been around longer. In many cases the prudent business decision is to give up and use some other name. This has the clear drawbacks that any accumulated goodwill with customers relating to the previous name is often lost, and one must throw away stationery, business cards, and promotional materials and pay to have new materials printed.

Can a trademark be lost?

Yes, a trademark can be lost. It can turn generic or be lost through non-use. For a trademark to turn generic, it must become an industry standard, for example, people often use the word KLEENEX to refer to products other than those made by KLEENEX brand tissues. Another exmaple of a mark bordering on becoming generic is XEROXX. XEROX long ago became synonomous with photocopying. Also, if a trademark is not used, it is lost or abandoned. Thus, a trademark must be used once acquired to maintain it. While the lifetime of a trademark is without limit, the mark must be used, else it dies.


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