Trademark FAQ

Trademark FAQ

Trademark Definition FAQs

What is a trademark?

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.

What is a service mark?

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.

What is a certification mark?

A certification mark is a word, name, or symbol, used, to certify geographic origin, material, quality, or other characteristics of goods or services.

What is a collective mark?

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.

What is trade dress?

Trade dress is the ‚Äútotal image‚ÄĚ 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

What is the difference between a trademark and patent?

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.

What is the difference between a trademark and copyright?

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).

What are “common law” trademark rights?

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.

What are the benefits of Federal trademark registration?

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.

How long will it take to register my trademark?

Trademark registration can take a year or more.

What can be trademarked?

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.

What is trademark distinctiveness?

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.

What if I want to register a symbol, shape or design?

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.

Can the United States Patent and Trademark Office refuse to register my trademark?

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.

Do I have to be a U.S. Citizen to obtain Federal trademark registration?

No. You do not need to be a U.S. Citizen to obtain Federal trademark registration.

Is Federal trademark registration valid outside of the U.S.?

No. Federal registration is not valid outside of the U.S. However, some countries are members of international treaties which recognize U.S. registrations.

How do I find out if a mark is already registered?

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).

What constitutes interstate commerce?

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).

How long does my trademark protection last?

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.

What if my trademark is functional?

A functional mark is not protectable. However, purely aesthetic product features can be protected if they are not source identifying.

What is an Intent to Use trademark application?

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.

Trademark Infringement FAQs

When is someone liable for infringing my trademark?
Trademark infringement occurs when someone copies or imitates your trademark or uses it in a matter that is likely to cause confusion. An owner of a famous trademark with distinctive qualities can receive an injunction against another who uses the trademark and either taints the mark’s reputation or impairs its distinctiveness.