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What Is a Trademark?

Business owners have enough on their plates without worrying about trademark applications and the trademark registration process. A trademark lawyer can help entrepreneurs walk through the trademark application process and figure out how to protect their intellectual property along the way.

There are a few things that small business owners should be on the lookout for when finding a trademark attorney. This article will provide some background on what a trademark is and what it can do for your business. It will also help you know what to look for when building a client relationship with a trademark attorney and what questions to ask during your consultation.

Do You Need a Licensed Trademark Attorney?

Before starting your search for trademark legal services, figure out if you need trademark services. Would having a federally registered trademark be beneficial to your business? If this is your first time seeking an international trademark, speaking with an intellectual property attorney is in your best interests.

What Is a Trademark?

A trademark is any word, name, or symbol used in commerce to identify and distinguish a business product. A trademark can range from a business name to a business logo.

Trademark rights may prevent others from using a confusingly similar mark of the same type of goods or services (service mark) in commerce. It gives the person the exclusive right to the mark. A trademark cannot prevent someone else from making the same goods, nor can it stop another person from selling the same goods or services under a different mark.

Most trademarks can get state-level trademark protection in the states where the business sells the goods. Trademarks in interstate or foreign commerce can register with the U.S. Patent and Trademark Office (USPTO).

Do I Need to Register a Trademark?

You do not need to register a trademark to hold common law rights on the mark. You can establish rights on a mark based on the first use of it in a business or commercial setting.

Any time you claim rights or use the mark, you can use the  (trademark) or ℠ (service mark) symbols to notify the public of your right or claim. You do not have to file an application to use those symbols.

You can only use the federal registration symbol ® after the U.S. Patent and Trademark Office registers your mark through the federal trademark registration. You cannot use it while your application is pending.

Benefits of Federal Trademark Registration

There are quite a few benefits of federal trademark registration that a common law claim cannot give you, such as:

  • Nationwide notice of the trademark owner's claim, known as “constructive notice." It means one can't claim they didn't know you had a superior right to the trademark, or were using it first.
  • Evidence of ownership of the trademark. You can use your federal registration in court if you sue someone for infringing on your mark.
  • Ability to file a lawsuit in federal court.
  • Ability to register your mark internationally. Federal registration is a requirement.
  • U.S. Customs Service filing to prevent the importing of infringing foreign goods on your mark.

Would a Trademark Attorney Help My Small Business?

While you can register your trademark on your own with the United States Patent and Trademark Office, there are many nuances to trademark applications. These lawyers know what the examining attorneys who review your application are looking for in a trademark filing. In addition to going to law school, most have years of experience providing trademark law legal help to many different types of businesses.

Trademark Attorneys Can Save You Money

Application fees to the USPTO are non-refundable. You must submit your application with the proper documents to avoid losing hundreds of dollars in filing fees if rejected.

Before filing a trademark application with the USPTO, an intellectual property lawyer conducts a trademark clearance search, a time-consuming process. They will examine similar trademarks to determine the probability the USPTO would grant your application. They cannot make any guarantees, but their experience in trademark law helps them guide you. Examining attorneys use a likelihood of confusion test. They look to see if your proposed mark would confuse consumers about a similar mark.

If you file your federal trademark application without a thorough trademark search,  you might be opening yourself up to a trademark infringement lawsuit. If another company monitors registrations and sees your mark would confuse customers, they will oppose your trademark and may also seek damages against you. Filing your application put yourself on their radar. A trademark attorney likely would prevent that error and have you rebrand to avoid the possibility.

Law Firms Have Staff To Help with USPTO Office Actions

As a business owner, you deal with day-to-day operations, long-term planning, and whatever fires may flare up. Often the USPTO sends letters known as office actions. You have a small window of time to respond to that letter. If you miss a deadline or fail to file an extension, the USPTO will reject your application and cause you to lose all the time, effort, and money you put into that trademark process.

A law firm has paralegals and associate lawyers to ensure your deadlines will be met. More eyes on your case means a date is less likely to be missed. In addition, hourly rates for law firm staff members are less than those of the attorneys.

Representation at the Trademark Trial and Appeal Board

In the event your mark is not approved, you have the option to appeal. While you may represent yourself, the USPTO recommends having an attorney. The appeal hearing is like a trial. Since it is federal law, the parties follow the federal rules of evidence. You must also follow the Rules of Practice for the TTAB, which are complex.

Trademark Attorney Can Sue Infringers on Your Behalf

Trademark holders have exclusive rights. They can license the use of the mark to another person or business for a fee. Using a trademark without permission is an infringement. An attorney can send a demand letter on your behalf to an infringer. If they do not comply and stop using your mark, your lawyer can sue them for damages in federal court. Damages include lost profits, attorney's fees, and court costs.

Questions to Ask a Lawyer in Your Trademark Search

You want to hire an attorney you are comfortable with but also need one that understands intellectual property. Below are some questions you should consider asking:

  • How long have you been a lawyer?
  • Have you ever filed a trademark application?
  • How many trademark applications have you filed?
  • Do you charge by the hour? If so, what is your hourly rate?
  • Do you offer flat fee payment packages?
  • Will we meet before you file my trademark application?
  • How long does the trademark application process take?
  • If there is opposition to my filing, will you respond to it? Is that an additional fee?
  • Have you presented in front of the TTAB before?

An experienced trademark attorney can also give legal advice on intellectual property law, help you with trademark protection, and refer you to another lawyer if they do not focus on what you need.

Other Useful Small Business Trademark Resources

Need Trademark Registration Help? Find an Intellectual Property Lawyer.

Proper ownership of a trademark could influence whether or not a business survives. If you want to pursue a trademark, or learn more about trademark matters, consider searching existing trademarks online first. Then consult with an experienced trademark attorney to see if you should get a federal trademark registration.

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