Trademarks


A trademark is an identifying word, picture, or symbol that a seller of goods uses to identify and distinguish its product from the products of other sellers.  (Service marks protect services much as trademarks protect products.)  Trademarks protect the seller’s commercial interest by tying its products to the true source of the goods, the seller. 

Trademarks are protected both by the common law of the states and by federal statutory law.  Federal protection is generated by using a mark and filing a trademark registration application with the U.S. Patent and Trademark Office, assuming the application is approved.  However, trademark protection can also be derived from the common law, simply by using a trademark in commerce.  A federal registration gives broader and stronger protection and is highly recommended.

If two sellers are attempting to use the same or a similar trademark for the same or similar goods, generally the first user will have priority.  If there is a likelihood of confusion between the two marks, the first user will be able to prevent the second comer from using the trademark for those goods. 

Conduct a Search 

A trademark search should always be conducted before commencing use of a trademark.  This will avoid building up good will in a trademark and then having to change trademarks because of a prior user.  There are companies that will conduct a trademark search for a few hundred dollars, and complete search results can be obtained in a few days.  Interpreting the search results is a matter of legal analysis and is best conducted by trademark counsel. 

A “TM” symbol should be used adjacent to any mark used in commerce, to give notice of the company’s intent to use the name or symbol as a trademark.  However, it is illegal to use the registration notice (®) unless and until a trademark is actually registered in the Patent and Trademark Office.



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