Jul 13, 2010

Trademark Basics

In the third installment of our information series about intellectual property, we will give some basic information about the U.S. trademark system. A trademark or service mark is a form of property, much like your car or house, but which has no value apart from the goods or services to which it is applied. Trademarks and service marks may be words, slogans, symbols, initials, designs, melodies, or almost anything else used by you to distinguish your goods or services from those of others. The value of a trademark or service mark lies in the “goodwill” generated as the mark is used and becomes associated with you as the goods manufacturer or service provider and your standards of quality. In other words, your trademark or service mark indicates that your goods or services originate from you, and are subject to your standards of quality.

Properly used trademarks and service marks can last forever. Currently, U.S. trademark and service mark registrations are valid for 10 years and can be renewed as long as the mark is in use. Trademark and service mark registrations also are a valuable form of protection for your mark, putting the public on notice that the mark is your property. Without a registration, it may be possible, in some circumstances, for others to use your mark or a mark similar to yours, thereby trading on the goodwill you have built up over the years, or lowering the value of your mark if the other entity provides lower quality goods or services. As such, a trademark or service mark can be as valuable to you as your products or services themselves, and should be given the respect and protection it deserves.

A mark can be registered in the USPTO as a trademark or as a service mark, or as both, depending on whether the mark is applied to goods or services, or both. The protection granted to trademarks and service marks, however, is identical, as are the procedures for applying for registration. Trademarks generally are grouped into four major categories which, in descending order of protection afforded by statutes and courts, are: (1) arbitrary or fanciful; (2) suggestive; (3) descriptive; and (4) generic. The more distinctive the mark, that is, the closer the mark is to the arbitrary or fanciful category, the more likely it will be granted trademark status and the greater the amount of protection it will be given. There are two (2) types of trademark applications: Use applications and Intent-To-Use applications. Use applications are filed when you are actually using the mark in connection with goods or services offered to the public. Intent-To-Use applications are filed when you have a good faith intention to use the mark in connection with goods or services in the near future. After an Intent-To-Use application is filed, a Statement Of Use must be filed when actual use of the mark has started.

Although filing for trademark or service mark protection often can seem relatively easy, seeing the process through to completion can be difficult, and involves working closely with your trademark attorney and the USPTO to hopefully arrive at a registration that will adequately cover your goods and/or services.

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