Trademark: FAQ

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How do I obtain a trademark?

Unregistered Trademarks that are currently in use are afforded some limited protections under common law, such as restrictions on unfair competition or trade practices. Additionally, trademarks that have yet to be used can be registered, but additional filing and proof of intent to use are required.

What is a trademark?

A trademark is used to identify and characterize the source of goods of one party from those of another. Trademarks can vary from a word or phrase to a symbol or design. Service marks are used to distinguish the source of a service rather than a good, but the term trademark is generally used to refer to both trademarks and service marks.

How do I register a trademark?

Before registering a trademark, it is important to search to be sure it is not currently registered and claimed by someone else.   Even if you can not find a company using the name that you would like to use it does not necessarily mean that you are free to trademark the name.  It is important to have someone skilled in trademark law conduct a search to determine whether you can protect your proposed trademark.  It is possible that a few dollars saved on a trademark search could cost much more in the long run.Trademarks can be registered under one of two basis, either “intent to use” or “use in commerce,” depending on whether you are currently using the trademark. Trademarks under “intent to use” require additional registration. Once you have determined the trademark is not already registered and the proper basis for filing, you can file to register a trademark with the U.S. Patent and Trademark Office.

What does a trademark protect?

Unlike copyrights, trademarks are generally designed to protect consumers and ensure that the source of goods or services is genuine. The goal of a trademark is to guarantee that anytime you use a product, you can rely on the manufacturer’s trademarks as a sign of quality.

Trademark infringement?

Since trademarks are designed to protect the consumer, trademark infringement occurs when a consumer is likely to be confused about the source of goods. Courts look to a number of factors to determine whether a consumer could be confused or misled about what company manufactured a given product. In addition to trademark infringement, a trademark holder can bring a claim for trademark dilution. Unlike infringement, dilution does not consider the likelihood of consumer confusion, but instead considers whether the trademark’s power is weakened through association with another product or a trademark is tarnished through connection with an unflattering or inferior product.