Basic Facts About Trademarks

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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.

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.

Unlike copyrights or patents, trademark rights can last indefinitely if the owner continues to use the mark to identify its goods or services. The term of a U.S. federal trademark registration is 10 years, with 10-year renewal terms. However, between the fifth and sixth year after the date of initial registration, the registrant must file an affidavit setting forth certain information to keep the registration alive. If no affidavit is filed, the registration is canceled.

If the owner stops using the trademark for three years or more, this may be considered "abandonment" and he may lose the trademark unless he can demonstrate a good reason for the non-use. "Three years non-use" became effective January 1, 1996 and results from the Uruguay Round Agreements Act passed in December 1994 to implement the Trade Related Intellectual Property (TRIPs) portion of the GATT Agreement. (The time period for abandonment used to be two years.).

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