Trademark Identification

By Louis Kroeck

Trademark identification can be a difficult process, as there are many different sources of trademarks. In addition to the United States Patent and Trademark Office, or PTO, trademarks may be issued by individual state governments as well as governments from foreign jurisdictions. In order to adequately protect your mark, you must ensure that it is correctly identified and that it does not infringe on the mark of another.

Trademark identification can be a difficult process, as there are many different sources of trademarks. In addition to the United States Patent and Trademark Office, or PTO, trademarks may be issued by individual state governments as well as governments from foreign jurisdictions. In order to adequately protect your mark, you must ensure that it is correctly identified and that it does not infringe on the mark of another.

Identifying Third-Party Trademarks

One of the most popular tools for searching for third-party trademarks is the United States PTO's Trademark Electronic Search System, or TESS. TESS allows you to undertake a basic, word-only trademark search or a more advanced word and design search. TESS is available free of charge to allow parties interested in registering for a mark to see if that mark has already been registered with the PTO in the United States.

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Other Searches

In addition to performing a TESS search in order to identify third-party trademarks, it is common for individuals or their attorneys to undertake a common-law trademark search. It is not necessary to apply for a federal trademark in order to be granted common-law trademark rights. As a result, not all trademarks will be listed in the TESS system. A common-law trademark search generally entails combing the Internet, phone directories, state trademark directories and other sources in order to identify possible common-law trademarks not federally registered.

Identifying Your Own Trademarks

There are three proper ways to identify that your trademark has been registered with the United States PTO. You may use the "®" symbol, or you may use the text, "Registered, U.S. Patent and Trademark Office," or you may abbreviate this text to read, "Reg. U.S. Pat. & Tm. Off." If your mark is registered with the PTO, it is important to use one of these identifiers to give third parties notice of your registration, thereby lessening the chances of infringement or confusion.

Identifying Other Marks

If your mark is not registered with the PTO, you must not use any of the above identifiers reserved for officially registered marks: You can incur criminal or civil liability for misidentifying a mark. If your mark is not registered, you may use the "TM" identifier for trademark or the "SM" identifier for service mark. Before printing any packaging labels or affixing your mark to goods or services, you should contact a trademark attorney in your jurisdiction to make sure that you are in compliance with all laws.

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Enforcing A Trademark

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What Is a Trademark's Duration?

A trademark identifies a particular manufacturer of goods, using a particular phrase, design or symbol. Designs, words or symbols used to identify a provider of services are called service marks, although there is no practical legal difference between trademarks and service marks. The mark ensures consumers can easily identify a particular company as the source of a product, and encourages brand loyalty. It also distinguishes and sets apart a particular company’s goods and services from others. This encourages companies to maintain consistent quality standards in the goods and services they produce. In some cases, trademark protection extends beyond words or symbols, encompassing "trade dress." For example, if a fitness drink company packaged its drinks in unique, triangle-shaped bottles, that shape would be entitled to trademark protection.

Trademark vs. Service Mark

Trademarks and service marks serve essentially the same purpose, but there are slight differences in how they're applied and communicated to your market. Both are administered by the United States Patent and Trademark Office. This agency processes registrations for trademarks as well as service marks. Registration isn't mandatory, but it provides additional legal protection in certain situations.

How Trademarks Work

Any unique symbol, logo, word or phrase used to distinguish your business's services or products is a mark. Your trademark rights are created when you start using the mark in commerce, and include the right to exclusively use the mark and prevent others from using it. Trademark rights are valuable property rights that you can further protect by registering your mark with the state and federal government, as well as by diligently stopping others from infringing on your mark.

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