How Do I Know If I'm Violating a Trademark?

By Lori Lapidario

A trademark identifies and distinguishes the origin of a product or service in the marketplace. It uses either a word, phrase, design or any combination of these. It helps people to differentiate between products and services. Businesses have exclusive rights to use their marks in commerce, so long as they do not violate another party's mark.

Trademark Violation

You are responsible for ensuring that the mark you choose does not violate someone's trademark. It is your responsibility to conduct a trademark search to ensure that the mark being considered is not in use. There is no easy way to do this, and even the most extensive search may not be 100 percent guaranteed. Ignorance of trademark rights and rules is not a defense against infringement claims or lawsuits.

Trademark Search

An inexpensive way to conduct a search is through the Internet or by searching the United States Patent and Trademark Office's Trademark Electronic Search System. Another way to conduct the search is by hiring a trademark attorney. The attorney can either do an in-house search or use the services of a trademark searching company. He can then review the results of the search and provide the client with an opinion regarding use of the mark. This approach, however, could be costly.

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Trademark Registration

After you have decided on the mark to use, you can take advantage of your common law rights by using your mark in commerce, so long as your use does not violate another party's trademark rights. However, these rights are limited to the geographic area where you use the mark or can demonstrate planned use for the mark. You may expand upon your common law trademark rights by registering the mark in your state or federally through the U.S. Patent and Trademark Office. Registration of the mark provides ownership notice to the public and provides additional benefits and protections should you need to file an infringement lawsuit in the future.

Trademark Policing

It is your responsibility as trademark owner to police the use of your mark. You can conduct regular Internet searches to check if your mark is being used by someone else; however, such searches may not find every potential violation. You can also use the services of a trademark search company and pay for "watch" services to receive regular reports of pending trademark applications, domain name watches and common law uses of marks that may be similar to yours.

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Trademark vs. Service Mark

References

Related articles

How to Assert a Trademark if it is Not Registered

A trademark is a distinctive phrase, word or symbol used to represent your business in commerce. Trademarks are registered through the U.S. Patent and Trademark Office, and are primarily protected under federal law. However, many states provide common law causes of action to defend trademarks. Unregistered trademarks receive less protection than those that have been registered, particularly if the trademark owner has not yet applied for trademark protection. However, you may complete a trademark application at any time to begin receiving the protection of a registered trademark.

How to Check a Name for a Trademark

The primary reason to conduct a trademark search is to avoid using a name for your business that cannot be registered with the federal or state government. Before using the name, it is important to check whether the name, or a very similar name, is currently in use. You can check the records of the United States Patent and Trademark Office (USPTO) for federally registered trademarks. State registered trademarks can be checked in the records of the state agency overseeing trademark registration. You should also research the market area where you do business to search for unregistered trademarks currently in use.

Trademark Owner's Responsibilities

Holding an official trademark registered with the federal government gives you the right to exclusively use your mark, but it does not come without responsibility. If you have a trademark registered by the U.S. Patent and Trademark Office, there are ongoing requirements to meet in order to maintain and enforce its exclusive use.

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