Trademark Definition FAQs
A trademark is a word, name, or symbol used, or intended to be used, by a person in interstate commerce to differentiate merchandise from those of others.
A service mark is a word, name, or symbol used by a person to differentiate the services of one person from the services of another.
A certification mark is a word, name, or symbol, used, to certify geographic origin, material, quality, or other characteristics of goods or services.
A collective mark is a trademark or service mark used by members of an organization, indicating membership in a union, an association, or other organization.
Trade dress is the “total image” of a product that creates a consumer recognition of source identification. The includes the packaging, product configuration, size, color, texture, graphic and sales techniques.
General Trademark FAQs
Patent law protects inventions of novel and non-obvious items. A patent protects against subsequent similar inventions that are independently or dependently produced. Patents only last twenty years after the initial application date.
Trademarks distinguish the goods and services of one source from another. Copyright laws cover the expression of ideas such as words, pictures and digital media. Unlike both copyright and patent law which are subject to duration limitations, trademarks are the subject of both state and federal laws and do not have a durational limit. Trademarks that are properly maintained and not abandoned will remain valid (indefinitely).
Actual use of the trademark in commerce gives rise to common law rights which allow successful challenges to infringers. Common law trademark rights are protected regardless if they have been registered with the United State Patent and Trademark Office, provided they are not functional.
Trademark registration serves as prima facie evidence that the mark is valid and owned by the registrant, provides nationwide priority for the goods and services that the mark is registered, makes the mark incontestable after (5) five years, provides notice, and creates an ability to bring action in Federal Courts.
Trademark registration can take a year or more.
A word, name or symbol that is distinctive. A distinctive mark is one that is either fanciful, arbitrary, or requires imagination, thought and perception to conclude as to the nature of the goods.
A mark that merely describes a characteristic, quality, or ingredient of a product can obtain trademark protection if it acquires a secondary meaning. Secondary meaning can be established if the public is aware that the product or service comes from a particular source.
To register a trademark, you have to show that your mark is distinctive. That is, the ability of a particular trademark to perform an origin-identifying function.
A symbol, shape or design can be registered under trademark law if it is unique or unusual in the particular field and capable of creating a commercial impression distinct from its accompanying words.
Yes. Trademark registration can be refused on the following grounds:
The trademark is the generic name of the goods or services offered.
The trademark is merely descriptive of the goods or services offered without acquiring a secondary meaning.
The trademark is likely to cause confusion of another mark.
The trademark is functional.
The trademark consists of immoral, deceptive, or scandalous matters.
The trademark criticizes or suggests false association with a living person.
The trademark is geographically deceptive.
The trademark obtains the name of a deceased president with a living widow.
No. You do not need to be a U.S. Citizen to obtain Federal trademark registration.
No. Federal registration is not valid outside of the U.S. However, some countries are members of international treaties which recognize U.S. registrations.
You may either search the USPTO’s Trademark Electronic System (TESS) or hire an attorney to conduct a comprehensive search and assess the results for you (recommended).
Interstate commerce for goods: moving goods across state lines with the marks displayed on the goods. Interstate commerce for services: offering a service to patrons in a different state or offering a service that affects interstate commerce. (For example: gas stations, hotels and restaurants).
Trademarks do not expire. However, one can lose their trademark if it is abandoned, becomes generic or if the trademark owner fails to file a declaration of continued use.
A functional mark is not protectable. However, purely aesthetic product features can be protected if they are not source identifying.
An Intent to Use trademark application allows a trademark applicant to file an application for registration before the date the mark is first used. If the Intent To Use application becomes a valid trademark, the effective date of the registration will be the date the Intent To Use application was filed.