Chances are if you're a consumer in the United States, you're inundated with trademarks. They cover seemingly every blank service within sight and can be the deciding factor on whether we or not we make a purchase. Trademarks are much more complicated than all that, and if you're looking into registering your own, there is much to be considered.
What is a Trademark?
A trademark is any symbol, word, image, phrase, logo, or combination of the former that is meant to represent an individual, company or organization. A trademark can be represented by the following symbols:
- TM - Unregistered trademark
- ? - Unregistered service mark
- ® - Registered trademark
The difference between the three has to do with whether the trademark represents a good or service and whether or not the trademark has been legally registered. Once registered, the trademark owner is entitled to certain rights.
Registering a Trademark
If an individual or company wishes to claim ownership over their trademark, they must register it with the trademarks office. There are several steps and processes to trademark registration:
- Proper paperwork and formal application must be filed with the office.
- A representative of the U.S. Patent office must examine the aforementioned application.
- If the application passes inspection, and adheres to the rules of the trademark office it will published for opposition.
- As long as no one has contested the registration, the office will approve the trademark.
During the time of possible opposition, companies or individuals who believe the trademark is infringing upon their own may step forward and say so. In addition, if the trademark is being registered without the express consent of the individual who created it, they can also claim their part in the creation of the trademark.
Maintaining Trademark Rights
Once a trademark is registered, the owner is entitled to trademark rights. In order to maintain trademark rights the individual or company must:
- Actively use their trademark
- Lawfully use their trademark
- Not abuse the rights granted to them by the trademark
A trademark must be in continuous use, in order for the owner to claim his or her rights. The owner of the trademark is free to use it indefinitely as long as they renew between the 5th and 6th year of use, and on every 10th anniversary of the trademarks registration. In addition, the trademark owner cannot use his or her trademark for any sort of illegal or fraudulent activity. If this occurs, it is the right and duty of the Trademarks Office to revoke the trademark from its owner.
Enforcing Trademark Rights
Registered trademark owners are entitled to legal action if their brand is infringed upon. However, the infringement depends on:
- The opposing sides geographic location
- The notoriety of the trademark
- The level of similarity between the trademarks involved
Once these things have been determined, the trademark owner is free to prosecute contesting individuals or organizations who have infringed upon his or her registered trademark. Often times, companies will claim that they are not infringing upon another trademark as much as they are taking part in comparative advertising. For instance, if the trademarked word or phrase is used to describe another product, but not represent it, the opposition could claim that no copyright infringement is taking place. This is such a grey area in the legal field that some attorneys focus directly on organized comparative advertising.
Where to Get Started
Registering a trademark must take place with the Trademarks Office. Most of the initial paperwork and formal application can be found online. Since it is a government agency, thoroughness is advised. The government website for the United States Patent and Trademark Office is a good place to start. Before registering a trademark, it is best to look into competitor brands, slogans and trademarks in your field. Trademarks are a great way to establish your brand or your company, as long as you're ready to put serious time and thought into the acquisition and registration.