Trademark
Questions & Answers
1. What is a Trademark and Service
Mark?
2. How is a Trademark different from that of
a Copyright?
3. How are Trademark Rights established?
4. What are types of Applications for Federal
Trademark Registration?
5. Who May File an Application to Register a
Trademark?
6. Do I need an Attorney to Apply for Registration
of a Trademark?
7. How do I know if the Trademark I want is already
being used?
8. What types of Trademarks will be protected?
9. What is the Benefit of Trademark Registration?
10. When are the symbols "TM", "SM"
and "®" used?
1. What is a Trademark
and Service Mark?
A Trademark is a word, phrase, logo, symbol
or design, or a combination of these elements which identifies
and distinguishes a party’s goods or products from those
of others.
A Service Mark is similar to that of a Trademark,
except that a Service Mark identifies and distinguishes the
services provided by a party.
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2. How is a Trademark different
from that of a Copyright?
While a Trademark and Service Mark will protect
words, phrases, slogans, symbols and designs associated with
products and services, a Copyright will protect original artistic
and literary works such as music, books, pictorials and graphics,
poetry, stories, etc.
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3. How are Trademark Rights
established?
Trademark rights are established through either
(1) "actual use" of the mark, or (2) the filing
with a bona fide "intent to use" the mark in commerce.
(For federal registration purposes, "commerce" means
between one state and another state, or between the U.S. and
a foreign country. If state registration of a trademark is
sought, only intrastate commerce, or commerce within a state
is required).
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4. What are types of Applications
for Federal Trademark Registration?
Application for federal registration of a Trademark
or Service Mark may be accomplished by one of the following:
Application based upon "use" of the mark in commerce,
where the applicant has already commenced using such mark.
Application based upon a bona fide "intent to use"
the mark in commerce. Such use must be actual, and not merely
the advertisement or promotion of the mark prior to the availability
of the product or service for which the mark is being used.
(Note: If filing is based on "intent to use", applicant
must use the mark and later submit to the U.S. Patent and
Trademark Office ("PTO") either an Amendment to
Allege Use or a Statement of Use, together with an additional
filing fee of $100).
Applicant from outside the U.S. may file for protection in
U.S. based upon an application or registration of trademark
in another country. (Note: If applicant does not reside in
U.S., a representative in U.S. must be designated to receive
documents and correspondence).
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5. Who May File an Application
to Register a Trademark?
Only the owner of the Trademark or Service Mark
may file for the registration of the mark. The owner may be
an individual, corporation, partnership, association or similar
organization.
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6. Do I need an Attorney
to Apply for Registration of a Trademark ?
No, an attorney is not a legal requirement for
applying for the registration of a Trademark or Service Mark.
However, certain knowledge is necessary in order to properly
file the required documentation.
You can use our services to apply
for registration of your Trademark or Service Mark, and save
a substantial amount of money you would otherwise pay an attorney.
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7. How do I know if the
Trademark I want is already being used?
A "Trademark Search" is the proper
method to determine whether another party is already using
the Trademark or Service Mark which you are considering to
register. The "Trademark Search" is a valuable technique
in reducing the possibility that your mark would infringe
upon a mark belonging to another party. A search also reduces
the possibility of spending money on marketing and registration
for a mark which you may not be able to use.
Factors to be considered in determining whether
a conflict may exist between your mark and that of another
are as follows:
Whether the Trademark or Service Mark is being
used on competing goods or services.
Would consumers be confused by the use of similar
marks.
Whether the Trademark or Service Mark is being
used in the same geographical area and promoted or distributed
through the same network.
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8. What types of Trademarks
will be protected?
Trademark protection is generally granted to
names, logos, phrases, designs and symbols, which are inherently
distinctive or have become well known to the public through
use.
Such distinctive marks usually consist of unique
logos, contrived or coined words, words used in an unusual
context, etc.
On the other hand, common or ordinary words,
which are not usually considered distinctive, may nonetheless
receive Trademark protection if the long use and exposure
of such words has in fact developed significant public recognition.
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9. What is the Benefit
of Trademark Registration?
If use of your Trademark or Service Mark has
been established, and there is no opposition to your registration,
the PTO will place the mark on either the Principal Register
or initially on the Supplemental Register, depending on the
mark’s distinction.
As the recognized owner of the Trademark or
Service Mark, you may prevent another party from using the
same or a confusingly similar mark in connection with their
goods or services. Such other party may later be found to
be a "willful infringer", and be liable to you for
money damages and/or other relief.
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10. When are the symbols
"TM", "SM" and "®" used?
A party claiming rights to a Trademark may use
the symbol TM next to their mark, and a party claiming such
right to a Service Mark may similarly use the symbol SM. Registration
is not necessary in order to use these particular symbols.
However, the use of the ® symbol may be
used only after the Trademark or Service Mark has been registered
with the PTO, and it is improper to use this symbol prior
to the time that registration actually issues.
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