What Is a Trademark's Duration?

By Jennifer Mueller

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.

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 Rights

An individual or business acquires trademark rights either by being the first to use the mark in commerce in connection with specific goods and services, or by being the first to file an application for federal registration with an intent to use the mark. An unregistered mark may be followed by the TM (trademark) or SM (service mark) designation. This notifies the public that the individual or business associated with the mark claims ownership over it and is the first to use it in commerce. Once federally registered, the owner of the mark may use the ® designation.

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Federal Registration Benefits

Not all federal trademark applications are approved. For example, if a mark is confusingly similar to another previously registered mark, the application will not be approved. Marks also cannot be merely descriptive, deceptive, or deceptively misdescriptive. Registration is not required. However, registered marks are national in scope. The owner of a registered mark has the right to sue for infringement in federal court. Registration also provides a public record of the date of first use in cases of infringement, and allows the owner to recover attorney’s fees, damages, lost profits and costs of infringement.

Duration

Federal trademark registration remains valid for 10 years after filing, with optional 10-year renewal periods. To maintain active registration, the owner must file a “Declaration of Use” between the fifth and sixth year following the initial registration. If the declaration is not filed the registration is cancelled and cannot be reinstated. Owners wishing to renew registration must file for renewal within the last year of each term. The U.S. Patent and Trademark Office (USPTO) provides a six-month grace period for renewal, provided an additional fee is paid. If an owner fails to renew her registration, she must file a new registration application.

Loss of Trademark Rights

A trademark owner may lose trademark rights despite valid registration and renewal. If an owner stops using a mark in commerce, the trademark is considered abandoned. The law only protects marks as long as they are in continual use. Rights may also be lost if the owner improperly licenses his mark. Finally, a valid trademark may become generic over time, resulting in loss of rights. For example, the word “aspirin,” initially a trademark of the Bayer company, has become generic over time and is no longer subject to trademark protection, in the United States, but remains under trademark protection in Canada and in many European countries.

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Expiration of Trademark Registration & Abandonment

References

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A wordsmith may play with language to create a new term or phrase that he believes was never previously used. However, a term or short phrase by itself is not entitled to copyright protection under U.S. law. Section 102 of the 1976 Copyright Act states that only “original works of authorship” are entitled to copyright protection, and short phrases do not fulfill this standard.

Why Have a State Trademark?

Business owners have the ability to register for state trademark protection instead of, or in addition to, federal trademark registration. State registration protects an owner's intellectual property rights in his mark within the boundaries of the state. For a business owner with no plans to expand beyond the boundaries of one state, a state trademark prevents other businesses from using a similar logo or slogan.

Logo & Trademark Rules in the US

The U.S. Patent and Trademark Office defines a trademark as "a word, phrase, symbol or design, or a combination of words, phrases, symbols or designs, that identifies and distinguishes the source of the goods of one party from those of others." A logo is a distinctive graphic design element that may be included in a trademark. Trademarks are governed by both state and federal law.

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