Trademark Registration

How To Register a Trademark

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A trademark is a word, phrase, symbol or design, or combination of words, phrases, symbols or designs, which identifies and distinguishes the source of the goods or services of one party from those of others. A service mark is the same as a trademark except that it identifies and distinguishes the source of a service rather than a product. (In some cases a trademark can also be a sensory mark: a sound, a color or a smell.) Normally, a mark for goods appears on the product or on its packaging, while a service mark appears in advertising for the services. The terms "trademark" and "mark" are used commonly to refer to both trademarks and service marks.

Trade names or business names are the names used to identify a particular company or corporation. Trademarks are names that identify a business´s goods or services in the marketplace. Business names can become trademarks when they are used in the marketplace to identify a product or service. Registering a business name through state corporate name registration or state fictitious business name registration secures the right to use that business name with respect to bank accounts, debts, invoices, lawsuits, etc., but it does not create (or affect) the right to use that name in the marketplace as a trademark.

In the United States of America trademark rights arise from either actual use of the mark, or the filing of a proper application to register a mark in the United States Patent and Trademark Office (USPTO) stating that the applicant has a bona fide intention to use the mark in commerce within six months of the application date. Federal registration is not required to establish rights in a mark, nor is it required to begin use of a mark. However, federal registration can secure benefits beyond the rights acquired by merely using a mark. In other countries different procedures and rules may apply.

There are two related but distinct types of rights in a mark: the right to register and the right to use. Generally, the first party who either uses a mark in commerce or files an application in the USPTO has the ultimate right to register that mark. The USPTO's authority is limited to determining the right to register. The right to use a mark can be more complicated to determine. This is particularly true when two parties have begun use of the same or similar marks without knowledge of one another and neither has a federal registration. Only a court can render a decision about the right to use, such as issuing an injunction or awarding damages for infringement. It should be noted that a federal registration can provide significant advantages to a party involved in a court proceeding. The USPTO cannot provide advice concerning rights in a mark. Only a private attorney can provide such advice.

Securing a federally registered trademark takes several months, can be done without an attorney and generally involves the following steps:

Completing a preliminary search of existing trademarks to determine whether others have already acquired rights to the identical trademark or a confusingly similar mark.

Completing the federal trademark application form.

Examination of the application by the USPTO.

Publishing of the trademark in the USPTO´s Official Gazette.

Placement of the trademark on the Federal Trademark Register.

For additional information on the registration process, please visit the USPTO web site.

For the list of trademark offices in other countries, please read our Trademark Offices page.

For further professional advice or assistence, consult one of the trademark attorneys listed in Webton Trademark Directory.

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