A trademark is any word, name, or symbol used in commerce to identify and distinguish a business's product or merchandise, and to indicate their source. A trademark can be considered a business's brand name, and use of a trademark without permission can be considered infringement of the trademark holder's rights. Trademarks are registered with and granted by the U.S. government's Patent and Trademark Office.
Trademark rights may be used to prevent others from using a confusingly similar mark, but not to prevent others from making the same goods or from selling the same goods or services under a clearly different mark. Trademarks which are used in interstate or foreign commerce may be registered with the U.S. Patent and Trademark Office, and most trademarks can also be registered in specific states.
You do not need to register a trademark in order to hold rights on the mark, however. You can establish rights on a mark based on your legitimate use of the mark in a business or commercial setting.
For more definitions related to trademarks, visit the Intellectual Property Law Glossary in the FindLaw Legal Dictionary.
Using Trademark Symbols
Any time you claim rights in a mark, you may use the "TM" (trademark) or "SM" (service mark) designation to alert the public to your claim, regardless of whether you have filed an application for registration of the mark. However, you may use the federal registration symbol "®" only after the U.S. Patent and Trademark Office actually registers a mark, and not while an application is pending. Also, you may use the registration symbol with the mark only on or in connection with the goods and/or services listed in the federal trademark registration.
What is trade dress?
Some brands don't just use a word, phrase or symbol to market their product, they also use distinctive packaging. A good example of this is a company such as Tiffany's, which uses a distinctive color and type of box to sell its jewelry. This use of distinctive packaging is what is known as "trade dress." Trade dress isn't limited simply to boxes, but can include distinctive use of color, shapes and even décor.
The goal of trade dress overlaps significantly with the goals of trademark law: to identify goods or products through distinctive features and reduce customer confusion. Accordingly, trade dress often can be registered as other type of trade or service mark and receive protection under federal trademark laws.
Need a Patent, Trademark or Both?
Inventions and improvements to existing inventions are protected by patents. Copyrights cover literary, artistic, and musical works. Trademarks are brand names and/or designs which are applied to products or used in connection with services. Some of the benefits of federal trademark registration include:
- Constructive notice nationwide of the trademark owner's claim.
- Evidence of ownership of the trademark.
- Jurisdiction of federal courts may be invoked.
- Registration can be used as a basis for obtaining registration in foreign countries.
- Registration may be filed with U.S. Customs Service to prevent importation of infringing foreign goods.
So if you are looking to pursue a trademark, consider searching existing trademarks online first. Then reach out to consult with an experienced trademarks attorney.
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