Trademarks
The following is a very brief overview of trademark laws and issues. Trademark law is very nuanced and every situation is unique. Therefore, each case should be individually evaluated by an experienced attorney. Please do not rely on the following as a definitive answer to any of your trademark questions. If you have a question please feel free to reach out to us. We offer free consultations, and we are happy to speak with you.
Do you have a possible trademark?
A trademark can be any symbol, such as word, name, catchphrase, and/or logo, which is used to identify your business or organization to the public.
A trademark cannot be a generic term for the services/products offered. For example, the name “Homeless House” for a homeless shelter would be too generic.
Do you have the right to use your possible trademarks?
You essentially have the right to use it unless you don’t. You will not have the right to use your trademark if someone else has federally registered a confusingly similar trademark prior to your use. Also, you will not have the right to use it if someone is already using confusingly similar trademark in your geographic area.
Do you already have limited trademark rights?
Unless you don’t have the right to use a trademark (see above) then you automatically establish some exclusivity rights within your geographic area when you start using the mark.
Should you federally register your trademark?
Even if you already have limited rights within your geographic area of use, there are still a few reasons to file a federal trademark registration.
- Business Expansion: If another company files a federal registration before you do, you will be locked in to only using your trademark in your current geographic area. Therefore, your business will not be able to expand.
- Reputation: If another company starts using your name it could hurt your reputation. For example, if the CEO of another company is caught embezzling funds, the public at large may assume that your company was involved if that other company is using your name to identify themselves.
- Protection from Lawsuits: A federal registration may function as a pseudo shield against claims of trademark infringement by third parties. The United States Patent Office (USPTO) vets out improper trademarks and trademarks that are confusingly similar to prior registered trademarks. Furthermore, after five years of registration the trademark receives a presumption of incontestability. Therefore, after a trademark is federally registered it is much more difficult for third parties to claim that such a trademark is infringing their own.
What should you do if you want to register a trademark?
The USPTO and this firm recommend that you hire a private attorney to help you file and prosecute your registration. Click here to see what the USPTO has to say on the subject.