Do You Need a Trademark? - Law

Copyright (c) 2006 Elias Stassinos

Here's what you need to know about trademarks.

Even though all starting businesses need one or more business licenses and tax ids before legally starting business operations, another consideration when starting a business is the trademark of the business name, product or service. After reading this article you will know what is a trademark and whether you need to register one.

What is a Trademark?

A trademark is a word, phrase, symbol or design, or a combination of words, phrases, symbols or designs. This word, symbol or design identifies and distinguishes a company's products or services from products and services of another company. Note that a trademark of a product is the mark of the product itself or a mark associated with the offering of a product. Similarly, a trademark of a service is the mark in connection with the services.

Do I need to register a trademark?

Trademark registration is not required but it will help you in case the use of the mark is challenged. You can establish rights in a mark based on legitimate use of the mark. "Legitimate use" in general means that the name, mark or symbol used in connection with a bona fide offering of goods or services within a specified geographical region. Thus, if, for a period of time, you use the mark to sell toys in the Los Angeles Metropolitan Area, you acquire rights to the mark selling toys in that particular area. Or, if you do business nationwide, you acquire rights to the use of the mark, nationwide.

You can establish rights to a trademark if you register the trademark at the federal or state level. That will establish that you are commonly known by the registered trademark. If it is a name, you can establish that you are commonly know by that trademark name if you register a corporate name as a corporation or the trade name as a "doing business as" ("DBA"). In addition, registering a trademark provides constructive notice to the public, and a presumption that you are the owner or the mark and you use it in connection with the goods and/or services listed in the registration.

Federal trademark registration allows you to to bring an action concerning the mark in federal court. The trademark registration is also a basis for registration in other countries. You can also file with the U.S. Customs Service to prevent importation of infringing foreign goods. Keep in mind, however, that you any time you claim rights in a mark, you may use the "TM" (trademark) or "SM" (service mark) designation to alert the public to your claim, regardless of whether you have filed an application with the United States Patent and Trademark Office. However, you may use the federal registration symbol "" only after the United States Patent and Trademark Office actually registers a mark, and not while an application is pending. Also, you may use the registration symbol with the mark only on or in connection with the goods and/or services listed in the federal trademark registration.

How do I file a Trademark Application?

If you hire a trademark attorney, you normally fill out a secure online trademark application form. I recommend hiring an attorney because if you prepare and submit an application, you must comply with all requirements of the trademark statute and rules. If you choose to appoint an attorney to represent your interests before the United States Patent and Trademark Office, the United States Patent and Trademark Office will correspond only with your attorney.

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