Trademarks are symbols, words, names or devices that businesses or individuals use when trading particular goods in order to indicate the source and to differentiate their goods from those of others. A service mark is used when a business or individual sells a service instead of a product, but otherwise the definition is the same. “Trademark” and “mark” are used interchangeably to refer to trademarks and service marks.
Trademark rights can prevent others from using a mark that would cause confusion due to similarity. However, the mark doesn’t prevent others from making and selling the same goods and services, as long as they use a different mark. You can use trademarks with interstate or foreign commerce when you register them with the U.S. Patent and Trademark Office (USPTO), and you can also register your trademark in a particular state, as long as yours allows registration.
Reasons to Register a Trademark
Registering a trademark isn’t required, as just using the mark can establish your rights to it. However, there are several advantages to registering your trademark, including:
- Providing the public constructive notice of your claim of ownership
- A legal presumption of your ownership of the mark, as well as your exclusive right to use it nationwide in connection with all goods and services you’ve listed in the registration
- The ability to bring your concerns regarding infringement of the mark to the federal court
- Preventing infringed foreign goods from being imported by filing the registration with the U.S. Customs Service.
Federally registered trademark rights can last indefinitely. In order to continue to claim rights, you must keep using the mark in connection with your goods or services in your registration. You also must file necessary documentation with the U.S. Patent and Trademark Office when needed. The owner of the registration must file the following periodically:
- Affidavits of Continued Use or Excusable Nonuse under 15 U.S.C. §1058
- Applications for Renewal under 15 U.S.C. §1059.
How to Actively Use Your Trademark
To effectively use your trademark and establish legal protection, put the mark in use to identify your goods or services. Actually selling the goods and services isn’t necessary in order to establish credibility, but it must be in a visible location that is available to the public. For instance, if you create a website selling antique typewriters and place your trademarked logo or image on your website, you’ve put it into use, even if you don’t sell any of your typewriters. By putting it into use, you’ve safeguarded your registered trademark against infringement.
Reserving Your Trademark for Future Use
If you know what trademark you want to use but won’t actually be using it for a while, you can file an “intent to use” (ITU) with the USPTO. The ITU doesn’t act the same as a registered trademark, but it reserves the mark for you to use in the future. Once you’ve filed the ITU, you must use the trademark six months to three years after filing. Once you actively use the mark, the official date for the first “use” backdates to the date of your filing. Therefore, if you have a trademark you know you’ll want to use in the near future, it pays off to file for an “intent to use,” as you can proactively protect the trademark against infringers.
Using Trademark Symbols
Even if you haven’t registered your trademark, you can use “TM” or “SM” (trademark or service mark) to let the public know of your claim to the mark. Once the USPTO registers your mark, you can use the “®” symbol, but not while your application is still pending. Also, you may only use the registration symbol when used in conjunction with your mark, and only with the goods and services you’ve listed in the registration.
Registering your trademark or service mark and then keeping the registration active can protect your business from infringement.
The content on our website is only meant to provide general information and is not legal advice. We make our best efforts to make sure the information is accurate, but we cannot guarantee it. Do not rely on the content as legal advice. For assistance with legal problems or for a legal inquiry please contact you attorney.