FAQs – Trademarks

A trademark is any word, name, symbol, or device, or any combination of these, used, or intended to be used, in commerce to identify and distinguish the goods of one manufacturer or seller from goods manufactured or sold by others, and to indicate the source of the goods. In other words, a trademark is what is commonly referred to as a brand name.

A service mark is any word, name, symbol, device, or any combination, used, or intended to be used, in commerce, to identify and distinguish the services of one provider from services provided by others, and to indicate the source of the services.

A mark is most commonly used by businesses that manufacture and sell products or provide services. In this context, a mark represents your company’s standard of quality and care, whether it is manufacturing a product or providing a service. When you consistently produce and offer for sale products that are of high quality, your customers will associate that high quality product with your trademark. If you extend your product line under the same trademark, generally customers will associate the same level of quality with the new product. In addition, a unique trademark is generally easier to remember and helps your customers distinguish your products from those of your competitors.

A collective mark is a trademark or service mark used, or intended to be used, in commerce, by the members of a cooperative, an association, or other collective group or organization, including a mark which indicates membership in a union, an association, or other organization.

A certification mark is any word, name, symbol, device, or any combination, used, or intended to be used, in commerce with the owner’s permission by someone other than its owner, to certify regional or other geographic origin, material, mode of manufacture, quality, accuracy, or other characteristics of someone’s goods or services, or that the work or labor on the goods or services was performed by members of a union or other organization.

There are several factors you should consider when selecting a mark. Some factors are primarily business issues that relate to your image and marketing techniques. Other factors are primarily legal issues and include, among other things, whether your proposed mark is available for your use, the strength of your proposed mark, and the viability of registering your proposed mark.

The process generally involves the selection of several proposed marks, then researching each to determine if others have adopted one or more of the proposed marks, and evaluating the risk factors involved in selecting one of the marks over another. Ultimately, the selection of a mark involves a process of that blends your business objectives, including image and marketing, with the legal factors, looking for an appropriate balance of all factors within the context of your current circumstances.

Registering your mark in the United States Patent and Trademark Office (USPTO) gives you these benefits:

  • Legal notice throughout the United States that you claim ownership of your mark
  • Documentary evidence that you own your mark
  • Use of your USPTO registration as a basis for obtaining registrations in foreign countries
  • Use of your USPTO registration to prevent importation of foreign goods that bear a mark that is the same or confusingly similar to your mark.
  • Often times a business may want to use another company’s well-known mark in connection with its goods or services. Under these circumstances, the mark’s owner can grant the other business a license permitting a specified use within a specified territory and under other specified conditions.

    Typically these license agreements call for the mark’s owner to receive a payment, often times in the form of a royalty. Royalty rates are usually expressed in the form of a percentage of the income the other party derives from the sale of goods or services that display the mark. These license agreements must contain certain provisions to protect the owner’s rights in the mark, and should not be entered into without consulting a competent attorney.

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