INFORMATION ABOUT
TRADEMARKS

Intellectual property law is the law of trademarks, copyrights and patents. A trademark is either a work, phrase, symbol or design, or a combination of words, phrases, symbols or designs, which identifies and distinguishes the source of the goods or services of one party from those of another. A service mark is the same as a trademark except that it identifies and distinguishes the source of a service rather than a product. For more detailed information about copyrights and patents, please see those articles on our Legal Article Wall.

We hope that the questions and answers presented here will assist you in familiarizing yourself with issues and terms of trademark law. Because all legal problems are unique, nothing provided here is a substitute for the advice of competent counsel. We strongly urge you to consult with an attorney licensed to practice in your state about any particular legal problem you may have.

HOW MUCH DOES IT COST TO REGISTER A TRADEMARK?

The Federal Government charges $245.00 to register a trademark if the mark has been used before and $345.00 if it has not been used before. Additional documents are required to register a trademark that has not been used before.

SHOULD I CHECK TO SEE IF A SIMILAR TRADEMARK EXISTS BEFORE TRYING TO REGISTER MY TRADEMARK?

Yes. It is clear that you must conduct a search before you mail in a trademark application. You need to see if there is a previously registered trademark which might cause a likelihood of confusion with the trademark you want to register. For example, certain registered trademarks are so unique and have developed such secondary meaning among the general public that if someone later comes into the market and attempts to use the good will developed by another, registration will be denied.

DOES A TRADEMARK SEARCH ELIMINATE ALL RISKS?

A search can range in completeness and expense depending on the nature of what is being searched. If you choose not to have a trademark search done or have an inadequate search performed before sending in your application and the government determines that your mark is likely to cause confusion, it will deny registration and not refund your $245.00 registration fee.

HOW LONG DOES A TRADEMARK LAST?

A trademark can last indefinitely if the owner continues to use the mark to identify its goods or services. Federal trademark registration is for 10 years, with 10-year renewal terms.

Protecting your ideas may have gotten a bit easier. There is an Internet site, Firstuse.com, that instantly time-stamps songs, scripts, business plans, MIDI files, and Internet-site contents to protect them against infringement. While this is not a substitute for copyrights, patents or trademarks, it claims to provide a good first step in protecting your intellectual property.

WHEN IS USE OF THE "TM", "SM" AND "(r)" SYMBOLS APPROPRIATE?

Anyone who claims rights in a mark may use the TM (trademark) or SM (service mark) designation with the mark to alert the public to the claim. It is not necessary to have a registration, or even a pending application, to use these designations. The claim may or may not be valid. The registration symbol, (r), may only be used when the mark is registered in the Patent and Trademark Office. It is improper to use this symbol at any point before the registration issues.

WHAT IS TRADEMARK INFRINGEMENT?

Trademark infringement arises from actions of one business in using a trademark similar to that of another business and thereby creating a likelihood of confusion among consumers . The test is often whether the general public (i.e., a consumer) would be confused into believing that he/she was purchasing a product made by company "A" when in fact he or she is not. An example of trademark infringement would be if a consumer, looking at two products from different manufacturers side by side, thought they were from the same manufacturer because their logos, design or name were confusingly similar. The theory behind finding infringement is that if a consumer wants to buy a certain product because of its reputation as a quality product, another company should not try to confuse or deceive the consumer as to the origin of the product.

WHERE CAN I OBTAIN A SAMPLE TRADEMARK APPLICATION?

You can contact the Federal Trademark Office at (703) 308-4357 to obtain a sample trademark application.

SHOULD I USE AN ATTORNEY?

The intellectual property area is very complex. While some people may choose to try to work through it on their own we believe that having an experienced attorney on your side is well worth the fee.

If you or someone you know have a problem with a trademark, a DESSEN, MOSES & ROSSITTO attorney will be happy to review the facts. Just press the button below to submit a factual history form.

If you have other questions or comments about the area of Trademarks or any other area in which we practice, please send us an E-mail message with your questions or comments and we will be happy to try to assist you.

LINKS TO OTHER INTERESTING INFO

Firstuse.com
Intellectual Property Magazine
N.I.I Intellectual Property Report
Small Business Administration (SBA)
Uniform Commercial Code
U.S. Patent and Trademark Office
USPTO Current Fee Schedule
U.S. Trademark Law

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INFORMATION ABOUT TRADEMARKS