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Trademark Registration

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The following trademark registration overview will provide a brief introduction to certain information of important for any inventor, entrepreneur or business seeking to register and/or protect their trademarks.

Federal and State Law Trademarks

Trademark Registration OverviewTrademark protection in the US come from three sources (see: trademark laws): 1) federal law, 2) state law, and  3) common law. Each source has its own requirements and levels of trademark protection; however, a federal trademark registration provides the most legal protection for your trademark. To qualify for federal registration, the trademark must be used in interstate commerce. This means the trademark must be used on a product or service that crosses state or national lines, or that affects commerce crossing those lines. (i.e., an internet business or a business with national or international customers, such as a hotel). If a trademark is used solely in one state, depending on the requirements of that specific state, the trademark can be registered in that state. State trademark registration can protect your trademark in that state alone, whereas a federally registered trademark allows you the benefit of protecting your trademark nationwide. Thus, to enjoy the maximum protections under the law, the best option is to register your trademark with the United States Patent and Trademark Office.

Common Law Trademarks

Common law trademarks are those that have not been registered under federal or state trademark law, but for whatever reason, the trademark owner decided not to officially prosecute and register its trademark. Despite the failure to register the trademark, under common law, a trademark owner may develop certain enforceable rights in a limited geographic area in which the trademark is used and/or advertised. However, because the trademark owner does not hold a federal or state trademark registration, the trademark is not entitled to the legal presumption of validity and enforceability enjoyed by registered trademark owners. As a result, common law trademarks are often very difficult to enforce.

Benefits of Federal Registration

There are many benefits of federal trademark registration. The biggest advantage is having nationwide priority over the exclusive rights to use the trademark. This gives the owner protection throughout the nation, regardless of where the owner uses the trademark. Additional benefits include:

  • Potential to have your trademark considered “incontestable”
  • Automatic right to sue in U.S. federal courts
  • The ability to recover the maximum amount of damages in a trademark suit
  • Ability to use of the ® (circle R) symbol
  • Deters others from using your trademark
  • Various advantages if you end up in court
  • Ease of foreign trademark registration

Trademarks That Can be Registered

Not everything can be federally registered as a trademark. When selecting a trademark, consider the following that cannot be registered as a trademark with the USPTO:

  • If your trademark is confusingly similar to a previously registered trademark, your application will be refused.
  • If your trademark is considered merely descriptive, registration will be refused. This could mean that your trademark is merely descriptive of the goods it represents, descriptive of a quality or feature of the goods, geographically descriptive, or descriptive of an individual by using a surname.
  • Trademarks cannot be immoral, deceptive, or scandalous.

Types of Federal Trademark Applications

An individual may file an application based on an intent to use the trademark in interstate commerce, or based on actual use in interstate commerce. An intent to use application must be based on a “bona fide” intention to use the trademark in commerce in the future as the signifying source of goods, products and/or services that will be offered. This allows an individual to establish some trademark rights before actual use of the trademark has begun. An application based on actual use means that the trademark is currently being used in interstate commerce.