A trademark is a symbol, design, word, or phrase that distinguishes one business's products from another. A service mark is a symbol, design, word, or phrase that distinguishes one business's services from another. The term "trademark" is commonly used to refer to both trademarks and service marks in the United States. Trademarks have common-law rights, but a business may also choose to federally register its trademark for enhanced protection.
Common-Law Trademark Rights
Common-Law trademark rights belong to the business that first uses the trademark, and common law rights only apply in the geographic area where the business operates. This prevents another business from offering the same type of product or service under a similar trademark in the same geographic area but does not prevent them from selling the same type of product or service under a similar trademark in another geographic area in the United States.
A business does not have to register a common law trademark. However, businesses must perform due diligence to determine if another business in its geographic area has common law trademark rights to a similar product or service to avoid infringement. This involves searching for local business directories and the Internet. A business can identify the symbol, design, word, or phrase as a common law trademark with the TM symbol (™) or a service mark with the SM symbol (℠). This notifies the public that the business has claimed common law trademark rights. In cases of infringement, however, the burden of proof is higher for trademarks without federal registration.
Federal Trademark Rights
Registering a trademark with the U.S. Patent and Trademark Office (USPTO) gives a business additional protection and creates a legal presumption that the business has the exclusive right to use the trademark on its products or services nationwide. This prevents other businesses from infringing or misappropriating the trademark owner's rights. A business may also register with the U.S. Customs Service to prevent foreign goods from infringing on its trademark rights.
Registration allows the business to file lawsuits in federal court if its mark is infringed upon. If a business expands to foreign markets, registering a trademark with USPTO gives it a basis for obtaining trademark registration in other countries for international protection. A business can identify its registered symbol, design, word, or phrase with the Circled R (®) symbol to show that it has secured federal registration for its trademark. Filing a trademark application does not give the business the right to use the ® symbol until USPTO approves the application. The ® symbol gives a business or brand, prestige.
Protect Your Trademark Rights
The Law Office of Elliott J. Brown offers a flat-rate trademark registration package to protect your business's trademark or service mark from infringement. This package includes a consultation about the applicable law, creation of a plan for your trademark, a comprehensive trademark search, application filing, and application status monitoring. Registration with USPTO is not guaranteed, but the Law Office of Elliott J. Brown can efficiently guide you through the process. Call us today at (732) 490-8200 or contact us online to learn how we can help you with registering your trademark.