What is a trademark?
A trademark is anything that identifies the source of a product. It could be your company name, product name or logo, to name the most frequently-occurring kinds of trademarks.
What is the difference between a trademark and a service mark?
A trademark identifies the source of a product, while a service mark identifies the source of a service. Since the term trademark has been around forever, it is used more frequently and often used to describe what are technically called service marks.
Do I need to register my trademark?
Absolutely not. There is simply no requirement to register your trademark. On the other hand, registering your trademark provides significant benefits and provides an easy mechanism for other diligent parties to identify your use and steer clear.
I already registered my company’s name with the state, isn’t that enough to protect it?
Registering a business entity name with the state’s corporate database does not have any legal impact on trademark rights. Registering a business entity name simply enables the company to conduct business in that state.
What is a trade name?
A trade name is the name by which a company or person is known. If you or your company is known by a name other than the legal entity name you have registered in the state corporate or sole proprietorship records, you may need to register that trade name with the state as well. It is a violation of Colorado law to operate under a name other than the registered legal entity name without also registering the trade name.
What is the main benefit of achieving federal trademark registration?
Easier enforcement of your rights. Federal registration on the Principal Register is the equivalent of using your trademark everywhere in the United States. If you rely on the rights that arise from use alone without registering, in order to stop an infringer you would first need to prove you had commercial activities in the same territory as the infringer before they started their own use.
If I decide to federally register my trademark, what information will I need?
In addition to owner details, you will need to decide which product and/or service types to register, the date each kind of product was sold and service was offered, both within one state and across state or federal borders. We will also need an example of current use of the trademark, as it appears on packaging or advertising, for example.
Do I really need to have out of state customers to get federally registered?
Yes, federal trademark registration confers federally recognized rights, so in order to get a federal registration you must first have sales or shipments of goods across state lines, or have rendered services across state lines. It also works if you have establishments in two states or operate in a federally regulated industry.
What is the benefit of conducting trademark clearance or availability searching?
Since trademark rights arise in the U.S. by use of the trademark alone, you could be adopting a trademark that someone else has exclusive rights to use (at least where the other party has commercial activities). Searching helps identify these rights holders before you adopt your mark and/or before you invest in seeking registration.
Do I really need to conduct a trademark clearance or availability search?
There is no requirement that you conduct a search before you adopt a trademark or seek trademark registration. In fact, if you have been using a trademark for a long time, it probably does not make sense to conduct a trademark search. If you are thinking about adopting a new mark or have not been using your mark very long, it does make sense to consider a search.
I ran across someone else using my trademark or something similar, what should I do?
If the trademark is being used for the same kinds of products or services you offer you might be able to stop their use. An important factor in the analysis is whether you have prior rights in the territory where the other party is operating.
I received a letter saying I am violating someone else’s trademark rights, do I need to stop using my company name?
If the other party has prior rights where you are operating and the use of both trademarks (your company name) is likely to cause confusion with customers, you might be forced to stop using your company name. I recommend you contact me to discuss the situation as there are many factors involved in determining your options.