Here's what you
need to know about trademarks.
Even though all starting businesses
need one or more business licenses and tax ids before legally starting business
operations, another consideration when starting a business is the trademark of
the business name, product or service. After reading this article you will know
what is a trademark and whether you need to register one.
What is a
Trademark? A trademark is a word, phrase, symbol or design, or a
combination of words, phrases, symbols or designs. This word, symbol or design
identifies and distinguishes a company's products or services from products and
services of another company. Note that a trademark of a product is the mark of
the product itself or a mark associated with the offering of a product.
Similarly, a trademark of a service is the mark in connection with the
services.
Do I need to register a trademark? Trademark
registration is not required but it will help you in case the use of the mark
is challenged. You can establish rights in a mark based on legitimate use of
the mark. "Legitimate use" in general means that the name, mark or symbol used
in connection with a bona fide offering of goods or services within a specified
geographical region. Thus, if, for a period of time, you use the mark to sell
toys in the Los Angeles Metropolitan Area, you acquire rights to the mark
selling toys in that particular area. Or, if you do business nationwide, you
acquire rights to the use of the mark, nationwide.
You can establish
rights to a trademark if you register the trademark at the federal or state
level. That will establish that you are commonly known by the registered
trademark. If it is a name, you can establish that you are commonly know by
that trademark name if you register a corporate name as a corporation or the
trade name as a "doing business as" ("DBA"). In addition, registering a
trademark provides constructive notice to the public, and a presumption that
you are the owner or the mark and you use it in connection with the goods
and/or services listed in the registration.
Federal trademark
registration allows you to to bring an action concerning the mark in federal
court. The trademark registration is also a basis for registration in other
countries. You can also file with the U.S. Customs Service to prevent
importation of infringing foreign goods. Keep in mind, however, that you any
time you claim rights in a mark, you may use the "TM" (trademark) or "SM"
(service mark) designation to alert the public to your claim, regardless of
whether you have filed an application with the United States Patent and
Trademark Office. However, you may use the federal registration symbol "®"
only after the United States Patent and Trademark Office actually registers a
mark, and not while an application is pending. Also, you may use the
registration symbol with the mark only on or in connection with the goods
and/or services listed in the federal trademark registration.
How
do I file a Trademark Application? If you hire a trademark
attorney, you normally fill out a secure online trademark application form. I
recommend hiring an attorney because if you prepare and submit an application,
you must comply with all requirements of the trademark statute and rules. If
you choose to appoint an attorney to represent your interests before the United
States Patent and Trademark Office, the United States Patent and Trademark
Office will correspond only with your attorney.
ABOUT THE
AUTHOR Elias Stassinos, Esquire is a trademark and incorporation
attorney that has assisted thousands of small business owners and entrepreneurs
launch their first business enterprise. Visit his law firm Website:
http://www.stassinos.com
. Attorney Elias Stassinos, Esquire is also a corporate legal counsel for the
leading online legal filing service at
http://www.businessnameusa.com .
