Frequently Asked Questions regarding Trademarks
A trademark is a word, phrase, symbol or design, or a combination of words, phrases, symbols or designs, that identifies and distinguishes the source of goods of one party from those of others.
A service mark is the same as a trademark except it identifies the source of a service.
A mark is eligible for federal registration after the mark has been used in interstate commerce, i.e. after the mark has been used between two states, in multiple states, or between the United States and a foreign country.
If the mark has not been used in interstate commerce, you may apply to register the mark based upon an intention to use the mark in commerce. If the application is based on intent to use, actual use must be shown within six months after approval. Extensions of time may be available to show actual use.
If the mark is only to be used within one state, the mark may be eligible for state trademark registration.
The trademark office may refuse registration for several reasons. Some reasons include the following:
- The mark includes immoral, deceptive or scandalous matter.
- The mark comprises a name, portrait or signature identifying a particular living individual (except that by that individual’s written consent).
- The proposed mark resembles a mark already registered in the Patent and Trademark Office so that use of the mark would likely cause confusion, mistake or deception.
- The mark is merely descriptive or deceptively misdescriptive of the applicant’s goods or services.
- The mark is primarily geographically descriptive or deceptively geographically misdescriptive of the applicant’s goods or services.
- The mark is merely a surname.
- The mark as a whole is functional.
- The mark is generic.
The federal registration symbol ® may be used after the mark is registered with the U.S. Patent and Trademark Office. The registration symbol may not be used during pendency of the application.
These designations indicate that a party claims rights in the mark and may be used in the absence of federal registration. If an application for the mark is pending before the U.S. Patent and Trademark Office, you may consider identifying the mark with the “TM” of “SM” designation.
Although there are no guarantees, generally, the examination process takes about six months.
Rights in a federally registered trademark can last indefinitely if the owner continues to use the mark and files the necessary documentation at the appropriate times. The applicant must file Affidavits of Continued Use or Excusable Non use as well as applications for renewal at the appropriate times.
There are many trademark scams out there. These scams generally involve sending a trademark registrant a letter that looks like it came from an official entity. Most times, these are simple scams trying to extract money from trademark registrants. Send the letter to your attorney to find out for sure.
For more information on trademark scams, and what is being done about them, please see this article.