A trademark can be a word, symbol, phrase or design which identifies the source of the goods signified by the mark. Service marks are those which identify services. The range of types of marks which may be registered and protected is quite broad. In fact, a recent case holds that even the color of a product, under certain circumstances, may be the subject of a certificate of trademark registration.
This is not to say that all marks are registerable. For example, a Trademark Examiner may refuse registration of a mark on the basis that the mark is generic, merely descriptive of the goods, or descriptive of a geographic area.
In the United States, trademark rights are acquired through use. This means that while a company or individual may file an application for trademark registration based upon an intent to use the mark in the future, an affidavit which attests to actual use of the mark must be filed before the trademark will be registered.
Trademarks can be registered federally in the U.S. Patent and Trademark Office, and also in those states which have trademark registries, including Pennsylvania. State registrations generally are used by companies whose business and use of the mark are limited to a single state. Federal registration, on the other hand, creates a presumption of national use. It protects both intrastate and interstate use of a trademark, even where the actual use of the mark is limited to a particular geographic area.
One of the primary benefits of a federal trademark registration is preventing others from infringing upon one’s legal rights to the mark. Registration creates a presumption of validity and ownership of the mark. It has the effect of putting potential infringers on notice of one’s ownership rights to a mark in association with a particular field of use. In this manner, registration may avoid unintentional infringement.
Other benefits of federal registration include its effect on the amount and type of damages which may be awarded in a trademark infringement action (under limited circumstances, treble damages) as well as potential protection of internet domain names which are registered.
Once a trademark owner has acquired rights to use of a trademark, he must enforce them, especially if he is aware of infringement. So, unlike some other areas of the law, unless the trademark owner enforces his rights diligently, he may lose them.
This is not to say that all marks are registerable. For example, a Trademark Examiner may refuse registration of a mark on the basis that the mark is generic, merely descriptive of the goods, or descriptive of a geographic area.
In the United States, trademark rights are acquired through use. This means that while a company or individual may file an application for trademark registration based upon an intent to use the mark in the future, an affidavit which attests to actual use of the mark must be filed before the trademark will be registered.
Trademarks can be registered federally in the U.S. Patent and Trademark Office, and also in those states which have trademark registries, including Pennsylvania. State registrations generally are used by companies whose business and use of the mark are limited to a single state. Federal registration, on the other hand, creates a presumption of national use. It protects both intrastate and interstate use of a trademark, even where the actual use of the mark is limited to a particular geographic area.
One of the primary benefits of a federal trademark registration is preventing others from infringing upon one’s legal rights to the mark. Registration creates a presumption of validity and ownership of the mark. It has the effect of putting potential infringers on notice of one’s ownership rights to a mark in association with a particular field of use. In this manner, registration may avoid unintentional infringement.
Other benefits of federal registration include its effect on the amount and type of damages which may be awarded in a trademark infringement action (under limited circumstances, treble damages) as well as potential protection of internet domain names which are registered.
Once a trademark owner has acquired rights to use of a trademark, he must enforce them, especially if he is aware of infringement. So, unlike some other areas of the law, unless the trademark owner enforces his rights diligently, he may lose them.
– Denise Turner