What is a trademark?
A trademark is a word, phrase, graphic design, or symbol that enables a customer to recognize that a product bearing the trademark comes from a particular source. A trademark may also be a combination of words, graphic designs, and/or symbols, and under some circumstances may include sounds, smells, and colors. If the word, phrase, graphic design, or symbol is associated with a service instead of a product, the mark is a service mark. Trademarks and service marks are legally very similar, so for simplicity's sake we will refer generally to "trademarks."
A trademark allows a customer to choose a product or service sold by a desirable source and to avoid products or services sold by undesirable sources. The customer does not need to know the actual name of the source, only that any product or service bearing a particular trademark comes from the same source. This knowledge provides the customer with reasonable assurance of receiving a desired combination of quality, price, service, and any other important attribute.
Federal registration of a trademark which gives protection throughout the United States lets competitors know that your mark is presumed valid and yours to use exclusively. back to top
How could a trademark be useful to me?
You want your customers to purchase your products or services again and again. An effective mark allows a customer to instantly recognize and choose your products or services in the marketplace. Once you have a registered trademark, you can keep others from using similar marks that confuse customers. And unlike a patent or a copyright, a properly-maintained registered trademark has no end date for protection. back to top
What marks can be protected?
Start by selecting marks that your customers would find attractive. Eliminate marks that clearly describe or are generic of your goods and services. Then have a search performed on the remaining marks to eliminate any that are already protected.
Assuming that you have thought of marks that would appeal to your customers and you have eliminated marks that are widely used to describe a group of similar products (generic) or merely describe some characteristic of an individual product (descriptive), then you are ready for a trademark search to eliminate marks so similar to an established mark that it would confuse customers as to the origin of your product or service. Even though our search services use proprietary databases that are far more complete than anything available to the public. However, no search can guarantee location of every conflicting mark. back to top
Isn't my business name automatically my trademark?
Not necessarily. When you register a business name for a corporation or an LLC, the Secretary of State normally checks state records to see whether anyone else in the state has registered precisely the same name. If not, the name is yours. However, your state may not check federal trademark registrations or any state registrations or unregistered uses, so your business name could already be someone else's trademark. In that case, you might be infringing that prior use and eventually be prevented from using your business name. A trademark search is a necessary first step in seeking to protect your business’ name. back to top
Can I register a trademark before I use it?
If you are already using your mark in commerce, a "use" application can be filed with the USPTO. If you have not yet used your mark in commerce, but have a bona fide intention to use the mark in commerce, an "intent to use" application can be filed. The requirements for both applications are essentially the same. One exception is that an "intent to use" application requires an additional filing of an Allegation of Use after receiving a Notice of Allowance which approves the application. back to top
How does the USPTO handle a trademark application?
When a trademark application is filed, the USPTO will check to see that all of the required elements are present. If so, an examining attorney at the Trademark Office will search for conflicting marks and determine whether your mark can be registered. If the examining attorney believes that there is some basis on which your mark cannot be registered, the USPTO will respond with a refusal. Responding to the refusal generally requires legal arguments that address the examining attorney's bases for the refusal. If a response to a refusal becomes necessary, we will review the matter and provide you with an estimate of costs so that you can determine whether to respond or abandon your attempt to register the mark.
If the examining attorney raises no objections to registration, or if we overcome all objections, the examining attorney will approve the mark for publication in the Official Gazette, a weekly publication of the USPTO. Publication allows other parties who might suffer damage if your mark is registered to file an opposition, provided that they act within 30 days of publication. If no opposition is filed, the USPTO issues a Certificate of Registration. back to top
How long does it take to register a trademark?
Typically twelve months. However, if the Trademark Office initially refuses registration, responses may stretch the process out. back to top
How much does it cost to register a trademark?
Federal application preparation and filing is a set flat fee. The filing fee is based on the number of classes of goods and services. If a Response to a trademark examiner's refusal becomes necessary, an estimate is made before any additional work is performed. back to top
If you have further questions about trademarks, please contact our office.
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