|Trademark Frequently Asked Questions
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- What is a trademark?
- What can be a trademark?
- How do I get a trademark?
- What is the cost to get a federal trademark registration?
- What is a trademark search?
- How do I protect my federally registered trademark?
A trademark is a brand that is used to describe the source or origin of goods and services and to define the quality of goods and services.
Trademarks distinguish your goods and services from those of others.
There are two primary types of marks that can be registered with the United States Patent and Trademark Office: (1)trademarks and (2)service
marks. A trademark is a word, name, symbol, or device, which is used in trade with goods to indicate the source of the goods and to distinguish
them from the goods of others. A service mark is the same as a trademark except that it identifies and distinguishes the source of a service rather
than a product. The terms "trademark" and "mark" are commonly used to refer to both trademarks and service marks.
Trademark rights can be used to prevent others from using a confusingly similar mark, but cannot be used to prevent others from making the same
goods or from selling the same goods or services under a clearly different mark. Trademarks used in interstate or foreign commerce may be
registered with the United States Patent and Trademark Office.
A trademark distinguishes the products of one source from those of other sources, ensures that all products bearing the trademark come from the
same source, ensures that all products bearing the trademark are of the same quality and is useful in advertising, selling and increasing product
distribution. The policies of consumer protection, property rights, economic efficiency and universal concepts of justice underscore the law of
trademarks. From an economic perspective, a trademark allows a purchaser to identify products that have been satisfactory in the past and reject
products that have failed to give satisfaction. Accordingly, a trademark encourages the production of quality products and reduces the possibility
of customers making repeatedly bad purchasing decisions. Commerce is a function of trademarks. People throughout the world purchase what
they have come to prefer, and use trademarks to locate their preferences. Trademarks not only reflect the quality of products and services but also
provide shortcuts for the consumer who can rely on marks as a substitute for testing each particular product. Therefore, trademark law is founded
on your right to protect and profit from your goodwill or quality. Others may not, whether innocently or intentionally, employ trademarks that are
likely to confuse or deceive customers into buying something they did not want. Finally, everyone is free to choose any distinctive mark to identify
their products and/or services provided that it is not confusingly similar to a mark used by others for similar products and/or services.
A trademark can be anything that is capable of functioning as a mark and, more particularly,
anything that is capable of distinguishing your goods and services from those of others.
You can trademark the following:
- Word/symbol combination
- Phrase/symbol combination
- Shape of an article of manufacture
- Packaging design
Anything that is capable of designating the source or origin of goods and/or services.
|How do I get a trademark?
In the United States a trademark can be acquired by (1)using a mark in commerce, or (2)filing a federal trademark registration
application with the United States Patent and Trademark Office (USPTO).
If you adopt a mark and begin using it in commerce in connection with goods or service, you have what is called a common law
trademark. A common law trademark is a mark that is used in commerce but and is not registered with the USPTO.
If you have chosen a mark but are not using it in commerce, you have the option of filing a federal trademark registration application
with the USPTO. At the moment an application for federal registration of a trademark that is not in use in commerce is filed with the
USPTO, rights to the trademark are immediately assigned to the applicant.
Whether you have a common law trademark or are considering filing a federal trademark registration application with the USPTO, it is
important to understand that federal registration of a trademark with the USPTO gives an applicant significant benefits. For instance, 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.
|How much does it cost to get a federal trademark registration?
At the Rhodd Law Office, the minimum cost for applying for registration of a trademark is $760.00 for a single international class filing.
Additional costs are incurred if the application is filed for goods or services that are in more than one international classification, or if
processing the trademark through the Trademark Office requires additional work after the application is filed. After a trademark
registration is obtained, it is necessary to 1) file an affidavit of continued use between the 5th and 6th anniversaries of the registration
date and 2) file a renewal application and affidavit of continued use every 10th anniversary of the registration date in order to maintain the
registration. A federally registered trademark can last indefinitely as long as the proper maintenance documents are accurately and timely
filed and the mark remains in use in commerce.
|What is a trademark search?
Determining the availability and registerability of a trademark before using a trademark in commerce and before filing a trademark registration
application with the United States Patent and Trademark Office is a prudent and necessary step in the proper acquisition and eventual
enforceability of a trademark. A good trademark search clears potential marks for use or registration, reveals state and unregistered common
law trademarks in addition to pending and registered federal trademarks, supports trademark litigation involving third party usage and provides
a meaningful determination of the potential strength of a mark.
At the Rhodd Law Office, the trademark search is a comprehensive computer-assisted search of unregistered, registered, and pending United
States trademarks and service marks. The search covers Federal and State trademark applications and registrations, domain names, and
extensive common law sources covering unregistered trademarks and business names. The trademark search also includes a comprehensive
analysis of the relative strength and registerability of the proposed mark compared to similar trademarks found from the search.
At the Rhodd Law Office, a comprehensive trademark search costs $750.00.
|How do I protect my federally registered trademark?
|A trademark must be used properly to identify and distinguish the products of one source from those of other sources, and to remain the
exclusive property of the owner. The rights acquired by federal registration must be maintained through proper and continuous use of the
trademark in commerce. On the other hand, widespread misuse of a trademark can, and normally does, make it difficult to enforce the
exclusive rights to use the mark.
To protect a trademark, several important guidelines should be followed when using the trademark in advertising literature, displays and signs,
product packaging, labels, business documents, and correspondence. The following are general guidelines:
a) ® for a federally registered mark.
- Use a trademark as an adjective followed by the generic name of the goods or services. A trademark is not a noun.
- Do not use a trademark in the plural or possessive form.
- Do not use a trademark as a verb. Trademarks are adjectives, and should never be use as verbs.
- Use a trademark consistently, as each deviation may create a new, different trademark.
- Use a trademark distinctively.
- Use a proper notice of trademark. Identify the trademark as registered or unregistered:
b) TM for an unregistered trademark.
c) SM or TM for an unregistered service mark.
7. Use the trademark continuously and notoriously, and do not abandon the mark.
8. Make sure others use the mark as an adjective and only as an adjective.
9. Prevent others from using and registering confusingly similar trademarks.