Trademark Information

A trademark is a word, phrase, symbol or design, or combination of the foregoing, which identifies and distinguishes the source of goods or services of one party from those of others. A service mark is the same as a trademark, except that it identifies and distinguishes the source of a service rather than a product. Often a mark for goods appears on the product or on its packaging, while a service mark appears in advertising for the services. The term "trademark" is often used to refer to both trademarks and service marks.

A proper trademark can be based on a basic work mark (Pillsbury), a stylistic word mark (particular font for Coca-Cola), a phrase ("we bring good things to life" for GE), a symbol (peacock for NBC), a shape (McDonald's golden arches). Even particular sounds, shapes and scents can be part of a trademark.

A trade name is a company name used to identify a business from other companies. A trade name is different from a trademark, but a trade name may also be used as a trademark (Sony Corporation sells Sony brand televisions). Federal registration of trademarks is possible, but trade names are not available for registration.

Trademark rights arise from either (1) actual use of the mark, or (2) the filing of a proper application to register the mark in the Patent and Trademark Office stating that the applicant has a bone fide intention to use the mark in commerce regulated by the U.S. Congress. Federal registration is not required to begin use of a mark. However, federal registration can secure legal and other benefits beyond the rights acquired by merely using a mark. For example, the owner of a federal registration is presumed to be the owner of the mark for the goods and services specified in the registration, and to be entitled to use the mark nationwide. There are additional legal benefits enjoyed by the owner of a federal registration when protecting the mark against third party infringement.

Life of a Trademark

Unlike copyrights or patents, trademark rights can last indefinitely if the owner continues to use the mark to identify its goods or services. The term of a federal trademark registration is 10 years, with 10-year renewal terms. A renewal application for a trademark registration cannot be filed until at least six months prior to the expiration of the trademark registration. However, between the fifth and sixth year after the date of initial registration, the registrant must file an affidavit or declaration setting forth information necessary to keep the registration alive. Such information includes (i) a statement that the registrant is still using the mark on or in connection with the goods or services listed in the initial registration, (ii) a specimen showing how the mark is currently used with the goods or services, and (iii) a filing fee. If no affidavit or declaration is filed, the registration is canceled.

Trademark symbols

Anyone who claims rights in a mark may use the TM (trademark) or SM (service mark) designation with the mark to alert the public to their claim. It is not necessary to have a registration, or even a pending application, to use these designations. The claim may or may not be valid. The registration symbol, שּׁ may only be used when the mark is registered in the Patent and Trademark Office. It is improper to use this symbol at any point before the registration issues. None of the above symbols are considered part of the mark itself.