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Trademark is Not a Verb

Trademark is Not a Verb

While we commonly talk about “trademarking” something, technically, trademark is not a verb. It is not something you do. A trademark is something you create. And, it is something you can register. You create your trademark by using it, not by registering it.

A Trademark is a Mark Used in Trade

A trademark is just a mark used in trade. It is a name or logo that identifies goods or services in the marketplace.

What Matters is Who First Uses It Commercially

The instant you use a name or logo to identify goods or services in the marketplace, you have created a trademark, have (potential) ownership of that trademark and are subject to trademark law.

"Trademark" and "Mark" Include "Service Marks"

Trademarks (related to products) and Service Marks (related to services) are sometimes distinguished. But legally there isn’t a difference. The terms “trademark” and “mark” refer to all kinds of marks—including service marks.

You Do Not Have to Register Your Trademark

Using a name or logo to identify goods or services in the marketplace creates a trademark. If you don’t register it, then it is sometimes called a common law trademark. If you use your common law trademark in more than one state, you can enforce your rights in the federal courts, even without registration.

Registration Increases Your Protection

Registration creates “presumptions”. That is, it tells the court to assume facts unless the other party in a lawsuit can rebut them (prove them wrong). Two presumptions are key: (1) that you own the mark and (2) that the other user deliberately copied it.

even If You Register Your Trademark, You Might Not Own It

even though registration creates presumptions, they can be rebutted. If you register a mark and another party can prove they used it nationally first—even though they did not register it—your trademark may be subject to cancellation. (If they are only using it locally, you might get to keep using it wherever they aren’t using it.)

Registration Typically Takes 18-24 Months, Sometimes Longer

The Patent & Trademark Office (PTO) has to conduct a search. Sometimes they have questions. Getting a registration is not an overnight job.

You Can Register Your Trademark Without a Lawyer

If you decide you want to register your trademark, you can do it yourself. It is not difficult. The Patent & Trademark Office has good instructions. And, you can do it online. In fact, it costs less if you do it online.

It Costs $325 to Apply for Trademark Registration

That is the cost for each classification you apply for. And it is the cost online. It costs more if you want to use paper.

The Money You Pay the Trademark Office is Not Refundable

The fees are not “registration fees”. They are “application fees”. Even if your registration is denied, they keep the fees.

You Should Do a Trademark Search Before You Register

First, if you don’t search and the Patent and Trademark Office doesn’t register your trademark, they keep your money. Second, in a “close call”, where your proposed mark is similar to an already registered mark, they may register you, but when you are sued, a court may disagree. Third, before they register you, they only check federal registrations. They do not check for unregistered marks and that could cause you problems too.

You Should Do a Trademark Search, even If You Do Not Register

even if you do not register your trademark, you should do a trademark search. Otherwise, you may choose a trademark that someone else owns. At a minimum this could require that you change your product and marketing after you spend a ton of money. In a worst case, it could subject you to penalties and attorney’s fees.

The Penalties for Using a Registered Trademark Can Be Big

The penalties for using a registered trademark can include: (1) economic damages the trademark owner suffered, or all the profits you made, (2) punitive damages of three times the about in #1, and (3) attorneys’ fees the trademark owner paid.

Trademarks Aren't Universal

Trademarks apply to particular goods and services. Just because you use a word or phrase for one kind of product, doesn’t mean that someone else can’t use it for another kind of product. For example, “Apple” is a trademark of both Apple Computer and Apple Records (the Beatles). “Delta” is a trademark of both the airline and the faucet company.

The Internet is Changing everything

As more and more businesses use the Internet to market across the world, even teeny-tiny businesses have national (and international) trademarks. This will increase the possibilities of confusion between small company trademarks and reduce the number trademarks which are exclusively “local”.

To Protect Multiple Classifications, You Must Pay Multiple Times

Trademark registration specifies the particular kind of product or service the trademark applies to. If you use your trademark in multiple classes, you may need to file multiple applications.

There Are No Trademark Police

You have to check for infringers and file your own lawsuits. If you don’t, no one will. If you don’t, you can lose the protection of your trademark.

If You Have a Registered Trademark, You Need to Read the Official Gazette

You not only have to check for infringers, you have to watch for people trying to register trademarks that conflict with yours so you can object. To do this, you read the Official Gazette. This is available online here: www.uspto.gov/web/trademarks/tmog.

The Trademark Office Does Not Send Renewal Notices

Trademarks must be renewed. But the Patent and Trademark Office (PTO) doesn’t send renewal notices. You have to track that yourself. If you don’t, you can lose your registration.

Domain Names Can Be Registered as a Trademark

A domain name can be a trademark, provided you are using it to market goods or services on the Internet.


A Book I Wrote About Trademarks

This page is based on an extract of an ebook I wrote about trademarks.

If you are interested in learning more, I encourage you to check it out.

Trademark is Not a Verb, an ebook by James S. Huggins Trademark is Not a Verb, an ebook by James S. Huggins:  This link takes you to the page for my ebook about trademarks. ««»»

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