How to Disclaim Part of a Trademark

By Louis Kroeck

Disclaimers are fairly common in the trademark registration process and a proper disclaimer may be necessary to ensure that the United States Patent and Trademark Office, or USPTO, approves your mark. A disclaimer basically limits your trademark claim to certain aspects of your mark while denying any claim to other aspects.

Why Disclaim Part of a Mark

Disclaiming part of a mark that is descriptive, informational or generic is important because it shows the trademark office that you are not attempting to gain an exclusive license to use a term that cannot be registered under trademark law. Additionally, disclaimers can aid courts in deciding trademark disputes when assessing the rights of two parties whose marks conflict.

Material That Cannot be Registered

A disclaimer will be required in a trademark application anytime there is material that cannot be registered associated with the trademark. For example, if you wanted to trademark your business name, "Little Franky's Diner," the "diner" portion of your trademark registration should be disclaimed, as that portion of the mark is descriptive and generic.

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Determining What to Disclaim

There are two major ways to determine what material should be disclaimed from a trademark application. An ideal trademark is original, unique and inherently distinctive. You should start by assessing if any part of your mark is generic, informational or merely descriptive. These aspects of a mark will not be granted protection so you should disclaim them. In addition to generic, informational and descriptive elements of your mark, you should perform a background search to make sure that no part of your mark will infringe on another trademark and subsequently disclaim or amend any infringing portions of your mark.

Disclaiming Certain Elements

When completing your trademark application, the second section of the application is titled, Mark Information. In the Mark Information section you will see the text, "No claim is made to the exclusive right to use 'BLANK' apart from the mark as shown." In the blank, you may type in any word you desire to disclaim as part of your trademark application. If you desire to disclaim multiple words or elements of your trademark registration, you may explain further in the Miscellaneous Statement portion of the Mark Information section of the application.

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How to Legally Trademark a Band Name

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How to Use TESS for Trademark

A trademark is a unique symbol, phrase or word used to distinguish one brand of goods or services from another. Technically, a trademark is protected as soon as it is used to conduct business, although registering the mark with the United States Patent and Trademark Office provides additional advantages. In any case, a search of the agency’s Trademark Electronic Search System, or TESS, can help to ensure a duplicate mark does not already exist.

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.

How to Copyright a Webpage

Your webpage is technically copyrighted as soon as it is placed in a tangible medium such as the Internet. In order to further protect your website you should consider registering for a formal copyright so that you will have the ability to sue any third parties that might misuse your materials. Copyrighting your webpage is not a difficult task, but copyright protection will only extend to certain aspects of your webpage, such as writings, artwork and photographs. A copyright will not protect your domain name, any functional aspects of your website, or any elements of your website that are common or otherwise part of the public domain.

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