What is a Trademark?
A trademark may be a word, name, symbol, device, phrase, logo, smell, color or sound which is used the indicate the source of a good or service. For example, McDonald’s® owns a registered trademark the name McDonald’s, as well as the phrase I’m loving it®, and the infamous golden arches.
What is the purpose of having a Trademark?
Trademark owners use trademarks to signal to consumers about the source, qualities and characteristics of their products. A trademark helps consumers distinguish the goods of one party from the goods of another.
Must you register your Trademark?
No, one does not have to register their trademark. However, owning a federally registered trademark is invaluable as it holds several advantages and benefits. For example, when one registers their trademark s/he is granted exclusive rights to use the trademark nationwide. Additionally, registration provides notice of ownership and makes the public aware of who owns the exclusive rights to the mark. Federally registered trademarks are governed by The Lanham Act. A registered mark is presumed valid and offers nationwide protection for a mark at least as early as the filing date of the application. It allows the registrant to use the federal registration symbol (®) and permits the registrant to sue for infringement in federal court.
Do you need an attorney to register your Trademark?
Trademark requirements may be complex, and therefore it is recommended one hires an attorney to prepare and submit ones application. The PLK Law Group procures, protects and licenses federally registered Trademarks and Service Marks. The PLK Law Group has prosecuted federal trademark applications before the United States Patent & Trademark Office (USPTO) and successfully secured approval for its clients.
Who may file for a trademark?
The owner of the trademark may file an application for registration. The owner may be an individual, corporation, partnership, LLC or other type of legal entity. Individuals do not need to be U.S. citizens to obtain a federal registration but must provide their citizenship in the application. The individual may or may not be able to register a trademark as a minor depends on state law.
How long does the registration last?
The trademark registration is valid so long as you file the correct post registration documents.
Can trademark rights be lost?
Yes, the trademark may be lost through:
- If a trademark is not in use for three consecutive years it is considered abandoned. Other people may then be able to acquire the trademark.
- Improper licensing or assignment
- If a trademark is improperly licensed or assigned then that trademark may be cancelled.
- Becoming generic.
- A trademark will become generic when the public begins to identify with the product instead of the source. For example, “Thermos” was trademarked by Thermos GmbH. People began associating any product providing thermal insulation, regardless of manufacturer, as a “Thermos.” As a result, “Thermos” was deemed generic and Thermos GmbH lost a trademark.
What if someone is using my trademark?
If you have a registered trademark and someone is using your trademark or another mark that could likely be confused with your mark then you may challenge the unauthorized use in Federal Court. If your trademark is not registered, there is still a possibility to pursue litigation in federal court under common law rights.
If the Court determines a trademark has been infringed, some remedies that exist are:
- Some claim to the profits the defendant made while infringing the trademark,
- Damages sustained by the Plaintiff while the defendant infringed the trademark,
- The losing party may pay for the cost the plaintiff endured in bringing the action in court,
- Injunction (stopping the infringing party from any/all uses of the trademark).
This, however is not an exhaustive list. For more information on what your rights are, how to protect your trademarks and what to do if you feel your trademark has been infringed, contact The PLK Law Group to speak to skilled trademark attorneys today.
The PLK Law Group has secured the following trademarks for its diversified clients:
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