What is a “trademark” and why should I get one?

It is a question that comes up frequently—and rightfully so.

If you’re reading this, you have most likely read about trademarks somewhere or perhaps received some (likely unsolicited) advice about their importance (when you are an entrepreneur, it is amazing how many people are ready to throw in their proverbial “two cents” (less frequently the real money)).

Fundamentally, trademarks are “source identifiers.” A trademark can be a word, shape, symbol, color, sound, scent, or combination thereof, used by a business to distinguish their goods or services.  A trademark owner has a limited property right to the exclusive use of that mark with relation to their goods or services.

Trademark rights are created through use.  Use establishes common law rights in a trademark.  Common law rights grant owners limited rights to the mark based on geographic locations, trade channels, or demographics.  Owners of common law trademarks may use the ™ symbol next to the mark.

Federal registration of a trademark provides several additional benefits depending on how your trademark is registered.  Trademarks can be registered on one of two Federal Registers: (1) the Principal Register, and (2) the Supplemental Register.  Registration on either register provides the following benefits:

• right to use the ® symbol;
• right to file a trademark infringement lawsuit in federal court;
• bar the registration of another confusingly similar trademark; and
• allow for international registration in certain instances.

Registration on the Principal Register, however, provides distinct advantages to the Supplemental Register, such as:

1. a presumption that
   1. the mark is valid,
   2. the registrant is the owner of the mark, and
   3. the registrant has the exclusive right to use the registered mark;
2. proof that the mark has acquired secondary meaning;
3. constructive notice of a claim of ownership, eliminating any justification or defense of good faith adoption and use made by a third party after the registration date;
4. the registrant is entitled to nationwide priority based on the filing date; and
5. the registration becomes incontestable after five years on the Principal Register, creating conclusive evidence of the registrant’s exclusive right to use the mark, subject to certain statutory defenses.

In order to obtain a federal trademark registration, your mark must meet two fundamental criteria: (1) the mark must be distinctive, and (2) it must be used in commerce.

To learn more about the trademarking process and how to increase your chances of obtaining a successful registration, contact us today.