A trademark identifies a specific brand of a product or service. It sets the brand apart from others and operates to eliminate the likelihood of confusion between competing products or services. A trademark can be a symbol, word, series of words or even a sound. Think of the apple with a bite taken out of it for Apple Computers or the Nike swoosh. These are trademarks.
You obtain a trademark in the United States through use of the mark in commerce. Therefore, an unregistered trademark may be just as valid and enforceable as a registered one, but the rights obtained through a registered trademark that is in use in commerce are vastly more significant. You can still use an unregistered trademark. But a registered trademark has a much higher degree of protection under the law.
UNREGISTERED OR COMMON LAW TRADEMARKS
If you adopt a mark and begin using it in commerce in connection with goods or services, you have what is called a common law trademark. A common law trademark is a mark that is used in commerce but is not registered with the USPTO. Although unregistered, such a trademark is nonetheless enforceable. If the letters “TM” are affixed, that serves as notice to the public that the word or symbol is an unregistered trademark. An important drawback of an unregistered common law mark is that its owner is afforded much less protection under the law than the owner of a registered one. For instance, common law trademarks are usually enforceable only within the geographic region or locale where the trademark owner is using it in business. Unregistered common law trademark holders may seek relief in either state or federal court, but protection is often limited to injunctive relief only.
To apply for federal trademark registration, a proposed trademark must be (1) in use, (2) not merely descriptive, and (3) not confusingly similar to an already registered trademark, or one currently under examination. Once registered, a trademark confers a bundle of rights upon the registered owner, including the right to use the ® symbol and claim sole and exclusive right to the trademark. Some other significant benefits given to registered trademark holders are that a federally registered trademark (1) is presumed valid, (2) is presumed to be owned by the registrant, (3) can eventually become incontestable, (4) invokes the jurisdiction of federal courts, (5) can be used for obtaining trademark registrations in foreign countries, and (6) may be filed with the United States Customs Service to prevent the importation of infringing foreign goods. If you have any questions about Unregistered or Registered Trademarks, please contact Parson & Goltry online today or call 480-991-3435. We are here to help.
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