Trademarks are distinctive marks — in the form of words, phrases, symbols, or a combination thereof — which designate a source or origin of a particular good. Trademarks do not have to be registered to be legally protected. However, you would be a fool not to register your trademark. When you simply begin using a trademark and affix the “SM” label to the mark, you are entitle to some protections.
Yet, when you register the mark with the United States Patent and Trademark Office (“USPTO”), you are afforded many, many more protections. Once registered, the whole world is presumed to be put on notice about the trademark’s existence (when the mark is unregistered, you have to show that the infringer knew or should have known about your mark, and acted regardless). Moreover, you are, depending upon the circumstances, entitled to more statutory damages if an infringement occurs. Based solely on these benefits, formal trademark registration is a must.
The registration process can be relatively straightforward or convoluted. It all depends on the nature of the prospective mark. The USPTO will examine your mark to determine whether it is sufficiently unique. Generic words or phrases are not afforded protection. The USPTO will also see if there are any pre-existing, registered marks which are identical or similar. Assuming the trademark passes the initial USPTO inspection, owners of pre-existing trademarks have an opportunity to challenge the new mark. Challenges grounded in Trademark Dilution (the weakening of an existing mark) or Trademark Infringement (the use of an identical or substantially similar mark) are common at this stage.
Trademark registration and litigation — like all intellectual property issues — is generally a federal issue. Because federal compliance and litigation is generally much more complex, you need adequate legal counsel to help you navigate the hurdles.
Do not hesitate to contact us today for a free trademark consultation.