A trademark is a distinctive symbol, word or phrase used to identify a seller’s product or products. The trademark helps distinguish the seller’s product from the products of another seller. For example, the trademark for “Nike” is the Nike “swoosh”. This symbol identifies this type of shoe. Marks can also be used to identify a company’s services rather than products. These are called service marks. For example, the service mark for a housecleaning company might be “Merry Maids” with or without a company logo.
State and federal law govern trademarks. State common law originally provided the main source of protection for trademarks. The U.S. Congress enacted the first federal trademark law in the late 1800s. But, since then federal trademark law has taken this over. Federal law provides the main and most extensive source of trademark protection today. State common law actions are still available.
A trademark can be registered at the United States Patent and Trademark Office’s website, www.uspto.gov. The cost to register a trademark costs between $275 and $325 and requires other information, such as the date of first use in commerce and a category of goods and services for which the mark is used. Registration with the PTO is not required for the trademark to be protected but there are many benefits to registering it. These benefits include: (1) registration gives notice to other parties that the trademark is already owned by someone; (2) registration enables an infringement lawsuit, if necessary; and (3) a trademark can become “incontestable” after five years and, at this point, the party has the exclusive right to use the trademark. Of course, registration could be denied or rejected. The PTO may reject marks that have not attained a second meaning. A descriptive mark acquires a secondary meaning when the public primarily associates that mark with a particular producer, rather than the underlying product. For example, the term “Verizon” has acquired secondary meaning because the consumers associate that term with a particular provider of cell phone services, and not with cell phone services, in general. The PTO may also reject a certain variety of marks, including certain geographic marks, “scandalous” marks, marks that are primarily surnames, and marks that can cause confusion with marks that are already existing. If a mark is rejected, this only means that it is not entitled to the benefits that are listed above.
You do not need to hire an attorney to register a trademark but it is recommended. You could check the Trademark Electronic Search System (“TESS”) database to make sure another company hasn’t already registered an identical or similar mark for the same categories of goods or services you offer and save money. But, if you do work with an attorney, there is a greater chance your trademark will be approved to be registered. Also, trademark attorneys don’t simply file your application for you. Your attorney will also help you through the entire process, from choosing a name all the way through to final approval. All of this helps assure approval and registration of your trademark.
