A trademark includes any word, name, symbol, or device, or any combination, used, or intended to be used, in commerce to identify and distinguish the goods of one manufacturer or seller from goods manufactured or sold by others, and to indicate the source of the goods. In short, a trademark is a brand name.
A Trademark is obtained by filing an application with the United States Patent and Trademark Office (USPTO).
Interstate commerce: In order to be eligible, the trademark must be used in “interstate commerce.” This means that the trademark must correspond to a product or service that does business, or affects commerce, in more than one state. A hotel or gas station, that services customers from other states, is an example of a trademark affecting commerce. Selling products, or offering services, on the web, qualifies as affecting interstate commerce, since people in other states can purchase the product or service.
Identical or similar to another trademark: In addition, the trademark cannot be identical or similar to another registered trademark corresponding to a similar product or service. This is why it is critical that a comprehensive trademark search be conducted prior to trademark registration.
Prohibited trademark: A trademark cannot be prohibited. An example of a prohibited trademark is one that:
- Contains the US flag
- Contains the name, likeness or signature of living persons (without their consent)
- Disparages or falsely suggests a connection with living or dead persons, institutions, beliefs or national symbols
- Is too similar to an existing trademark already registered with the USPTO
- Relates to immoral, deceptive or scandalous matter
Generic: A generic mark is one that describes an entire class of products, instead of who manufactures it. Examples include “Tire” brand of tires or “Personal Computer” brand of computers.
Descriptive: A descriptive mark is a step above generic, but still not distinctive enough to qualify for protection. Examples include “WheatNut” for a bread containing wheat and nuts or “Tire Center” for a business offering tire goods and services.
Trademark registrations can last indefinitely, as long as all post registration maintenance paperwork is timely filed and the owner continues to use the trademark to identify its services or goods. Between the 5th and 6th years of the initial registration date, an “affidavit of use” must be filed and an additional fee must be paid. An affidavit must also be filed, and a fee must be paid, within 1 year of every 10 year period. registration is cancelled if you fail to file an affidavit. However, there is a 6 month grace period.
There are many benefits to registering a trademark:
Trademark registration allows you to prevent others from using or registering a similar mark. As a registered national trademark holder, you would have nationwide priority when any conflicts arise.
When registering a trademark, the entire US is considered on notice that you are using the trademark. Once the United States Patent & Trademark office grants you the registration, nobody can claim they were not aware of the mark. Trademark registration also allows you to use a trademark symbol for your name and logo.
Increased Company Value
Trademarks are “intangible” assets that increase your company’s value. If you ever sell your business or take it public, this will surely increase your company’s value.
Internet Web Address Protection
If someone attempts to register a web address (domain) which infringes on your trademark, you may be able to close down the website much more easily than if you did not have a trademark. This advantage makes trademarks essential for Internet businesses where confusing names could direct traffic from your their site.