A trademark identifies a brand and can appear as a symbol, phrase or other product-specific expression. Trademarks in America are protected at both the federal and state level. If you don’t plan on conducting business outside your home state, then a local registration may be appropriate.
Registering With Your State
You will need to fill out an application with your individual state trademark authority, which is usually the Secretary of State Office. Federal trademarks, on the other hand, are governed by the U.S. Patent and Trademark Office (USPTO). Fees vary by state, but it’s usually cheaper than applying for a federal mark. Likewise, the turn-around time is usually much quicker. The average USPTO application takes between nine and 16 months to process.
Choosing a Trademark
A trademark does not have to be the name of your company. It can be a phrase or image that reflects your culture or a particular product. Federal trademarks are categorized according to distinctiveness. Fanciful marks are the strongest type. These are typically made-up words with no other meaning, such Kodak and Exxon. Arbitrary marks like Apple and Blackberry are real, unrelated words used to identify a product or brand. A suggestive mark, such as Airbus, incorporates a related language term that implies a certain product quality. Companies may also utilize non-registered or generic trademarks without government protection.
Trademark principles developed from common law, and most states have adopted some level of enforcement. However, federal law has been the primary governing body for the past few decades. State registration authorizes you to use one business name, but a local trademark may not necessarily confer ownership or protect your name from being used by other companies. A federal registration will trump a state registration only if the federal application was submitted first. In other words, you may not register a state trademark under the same name as an existing federal trademark.
While your specific state laws may differ, you should choose a name that does not conflict with the federal structure. As you grow, you may decide to expand nationally, and federal protection is the only way to maintain sole ownership of your image.
USPTO will issue a federal mark based on the intended use of the mark, but you must conduct business in more than one state. Otherwise, you can only apply for state registration. Check with your local office about specific use requirements.
State registration holds no power outside of the United States. Only a federal trademark can be used as the basis for international filing. The same principle applies when dealing with unauthorized imports.
State Trademark Symbols
The TM symbol is used for products, while the SM symbol is for service providers. Neither carries any legal significance. In many cases, they are used when a federal application is pending. The symbol with the letter R inside a circle is the official designation for a federally registered trademark. It may not be used at the state level.
The Role of the State
The Lanham Act is a United States statute that prevents trademark infringement and false advertising. In general, federal trademarks hold more protective power than those registered with a state. However, some local statutes allow for alternative remedies that are not available under federal law. Furthermore, most publicity rights are still governed at the state level. For example, you can file a claim locally if someone else uses your name or picture for commercial purposes without your consent.
The main benefit of a state registry is to notify applicants of names that are already in business. Even if you legally choose a similar name, you will likely confuse your customers, especially if the other name-holder is a competitor. If you’re attempting to start a business at the state or national level, consider talking to a lawyer before choosing a trademark.
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