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A trademark is a design, slogan, catch-phrase, word, or symbol that distinguishes your brand and makes it unique. It is how consumers identify and recognize your goods in commerce — and know they can rely on the quality of them. A trademark is also often used interchangeably with the phrase "service mark," which is used to identify services, rather than products. The trademark process is a multi-step proceeding designed to protect your brand.
Ideas are the most valuable assets a business has, and they must be legally protected. Trademarks are only one category of intellectual property. Patents and copyrights can also legally protect your creations.
While a trademark safeguards your brand, a patent protects your rights to an invention. Patents are issued by the United States Patent and Trademark Office (“USPTO”), along with trademarks. Unlike trademark protection, which can potentially last indefinitely, the property rights of a patent are limited in duration.
The third type of intellectual property is covered by copyright. A copyright protects original works of art, including literature, dramatic works, movies, songs, art, computer software, and architecture and is filed with the United States Copyright Office. The length of protection generally lasts for the creator's lifetime plus 70 years.
Trademarks are essential for any thriving business. Your brand is what defines your company and makes it successful. Without registering your trademark with the USPTO, you're potentially leaving your designs, slogans, product names, and symbols open to misuse by competitors.
Whether another business has used your unique marks intentionally or unknowingly, consumers may purchase these goods or services, believing that your company produced them. Not only can this hurt your bottom line, but it can also harm your company's reputation — especially if the mistaken products or services were inferior in quality.
When you're considering your brand's identity, it's crucial to choose a strong trademark. Trademark distinctiveness refers to the mark's ability to be distinguished from other goods or services. It also determines the level of legal protection the mark may have.
While your trademark should be carefully contemplated before you begin to use it in commerce and apply for registration, it's generally best to select an arbitrary or fanciful mark to differentiate your brand. These types of trademarks not only can be legally beneficial in the event of a potential infringement action, but they may also be best for the overall marketing strategy of your business.
There is a specific trademark process to register your brand and ensure it has nationwide protection. Importantly, using "TM" or "SM" does not adequately safeguard your mark from use by competitors in all 50 states — only federal registration can ensure this scope of protection.
While every trademark application will be different, the process is generally the same and consists of the following steps:
With the guidance of an efficient attorney, the trademark process usually takes several months. However, the entire trademark process may take as little as half a year to over several years, based upon any office actions issued and the timeliness of your response.
A trademark class indicates the type of good or service the mark represents. For instance, there are 34 classes for products, including clothing, food, beverage, tools, toys, paint, musical instruments, pharmaceuticals, and rubber goods. There are also 11 classes for service industries. Each trademark class is very specific, and you must ensure you file your application in the correct category. Sometimes, multiple classifications may be selected if appropriate.
Trademark infringement occurs when a business uses a mark without the owner's authorization. If you discovered that someone else is using your mark — or a mark that would confuse consumers into thinking they are purchasing your product — you may have grounds to commence legal action if you have priority rights.
To learn more about how a trademark can protect your brand, it's a good idea to consult with an experienced trademark attorney. The Trademark Lawyer Law Firm, PLLC has successfully registered over 6,500 trademarks and is committed to guiding clients through the USPTO trademark process. Located in Ann Arbor, Michigan, we assist business owners nationwide concerning all aspects of trademark law. Contact us today to schedule a free 15-minute consultation with a knowledgeable and proficient trademark attorney.
Suspensions are when your application is on hold. There are various reasons a trademark application can be suspended. However “likelihood of confusion” with prior application(s) filed and submission of foreign application are the most common reasons the USPTO may suspend an application. During a trademark suspension period, your lawyer will provide guidance on the next steps and whether it might be best to file an argument or pursue a coexistence agreement.
A disclaimer usually refers to a statement which indicates that you are not claiming exclusive rights to use the word(s) or a design element in your trademark application. A disclaimer allows for registration without creating a false impression of the registrant’s rights.
A good example of this is disclaiming “café” if your services are for a café.
If a trademark is not eligible for the Principal Registry, there is sometimes an option to register on the Supplemental Registry.
In cases where the USPTO finds the trademark application is merely ornamental, merely descriptive, or primarily geographically descriptive, the USPTO may allow the application to be registered on the Supplemental Registry. However, over time, the mark may acquire distinctiveness and possibly become eligible for the Principal Registry.
Two dates must be specified in a trademark application:
Date of First Use Anywhere: The “anywhere” refers to use in the U.S. or elsewhere. This is the date the goods were first sold or transported, or the services were first rendered under the mark. The use must also have been bona fide and in the ordinary course of trade.
Date of First Use in Commerce: This is the date when the goods were first sold or transported, or the services were first rendered under the mark in interstate or international commerce. The use of the mark must have been bona fide and in the ordinary course of trade.
The renewal timeframe for a trademark is between the 9th and 10th year anniversary of the trademark registration, and then in ten-year intervals. It is important to be aware that the USPTO also requires a registrant to provide an affidavit at the 5th and 6th years of ownership stating that the trademark is still being used in commerce. Failure to comply with the renewal timeframes or the affidavit requirements will result in the cancellation of the trademark registration.
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