You’ve got a great idea for a product or service. Maybe it’s so revolutionary it will rival the invention of the wheel. Or perhaps it’s just a minor variation on an existing concept. The first thing you need to figure out is how consumers are going to find it. This is where trademark law begins.
What Is A Trademark?
Trademarks identify the source or origin of a product or service. For example, Chanel is the trademarked name of a clothing brand, while McDonald’s “Golden Arches” and NBC’s multi-colored peacock are trademarked logos representing those companies’ brands. Trademarks are how consumers identify your brand and can be worth billions of dollars if adequately protected. Consider for a moment the aforementioned Chanel®, McDonalds® & NBC® – you can be certain they have a team of lawyers registering and enforcing their trademarks on a daily basis.
To trademark a name or symbol (usually a logo) to represent product or service you must first confirm it isn’t already being used by someone else. Assuming the name or symbol you have in mind is available, it’s now a matter of whether it qualifies based on two primary defining criteria: (1) how distinct your name is, and (2) whether it could be confused with another brand already in use.
Here’s an example, let’s say you’ve come up with an incredible name for a new clothing line for athletes. First, you need to make certain the name is distinct and not merely a description of the product you want to trademark – for example: “RUN FAST SHOES.” Second, you need to be sure no one else in the marketplace is already using a similar name to identify their brand.
Confused? Don’t worry, Carbon Law Group is here to help. When you are ready to start the trademark process we will conduct a comprehensive trademark search identifying marks that could prevent your registration or undermine your rights.
While these sorts of reports are available from online trademark services, they simply churn out a list of search results and fall gravely short on analysis. At Carbon Law Group, our seasoned attorneys and paralegals prepare a comprehensive report that evaluates the legal significance of our findings to give you a deeper understanding of your rights and the potential hurdles you may face in registering your trademark.
What if Your Trademark Can’t be Registered?
Sadly, it happens. And it can be very disheartening, especially if you’re personally invested in a particular name. Fortunately for you, however, Carbon Law Group’s attorneys are experienced in branding and design. We can help you facilitate the creation of a name or logo that will convey your brand image, while being distinct enough to qualify for trademark protection.
You Have a Name Acceptable For Trademark Registration – What Now?
At this point, Carbon Law Group will file your trademark application. Once your application, is filed your name will be protected against future use by unauthorized parties. Now you can begin to use the “TM” subscript with your mark. After about four months, your mark will be assigned to a Trademark Examining Attorney at the United States Patent and Trademark Office. This attorney will evaluate your trademark application and determine whether your mark passes the guidelines defined in the Trademark Manual of Examining Procedure (TMEP). The trademark process takes roughly nine months start to finish.
Statement of Use
One of the primary requirements for trademark registration is that a mark is used in commerce. This means you need to be already selling a product or service using the name you wish to trademark. However, the United States Patent and Trademark Office (USPTO), has a special exception where trademark applicants can file under “intent to use” to preserve the rights to a name they are not currently using in commerce. There are, however, two caveats applicants must be aware of: (1) the filer has six months to use the mark from time the USPTO issues a “notice of allowance” (this time can be extended up to three years), and (2) there is a filing fee associated with filing the Statement of Use (this fee depends on the number of classes in which you are using your mark).
What happens when someone sells a product or offers a service for sale using your trademarked name or symbol? In some cases, the infringer may be earning money due to the brand recognition your trademark garners. Or even worse, they could be damaging your brand by passing off inferior goods or providing substandard services in your name, which can seriously affect your future earnings. If the infringer is earning money based on your brand recognition, those funds (or at least a portion) should go to you. And if the infringer is harming your brand name, they may be liable for financial damages in restitution for your future potential lost earnings.
Determining the best course of action in infringement cases, however, can be difficult. In many situations, even something as simple as a cease and desist letter can jeopardize your rights, or possibly create a slew of additional problems. At Carbon Law Group, we help you weigh your options and devise a strategy that takes into account your overall position. If you decide a cease and desist letter is the best option, we’ll work with you to determine the level of response necessary in an effort to keep costs low and resolve the issue as quickly as possible.
If diplomacy fails to make an impact, you may be forced to initiate litigation against the infringer. This approach, however, can be time-consuming and costly. Carbon Law Group will outline the process and detail the potential costs, so you have a firm grasp of the situation at the outset of any legal action. Once you decide how to proceed, we’ll guide you through the process of battling the infringers. We’ll help protect your valuable intellectual property and recover any potential misappropriated earnings or financial damages.