Using your trademark is the primary way to create trademark rights, and the level of uniqueness of the trademark determines the strength of your trademark rights. Your trademark should be a distinctive logo affixed to your toy or packaging and include the designation "TM," which signifies that you claim trademark rights in your logo. Although your trademark rights give you exclusive use of the trademark, the exclusivity is limited to the geographical area where you market your toy. In order to acquire the greatest possible trademark rights, you should market your toys in as wide an area as possible.
Registering your trademark is not necessary to acquire trademark rights, but it does give your trademark rights maximum legal protection. Federal registration is done with the U.S. Patent and Trademark Office and can be done online. The advantages of federal trademark registration include having the right to use federal registration symbol ® with your trademark and the right to use federal courts to enforce your trademark rights. You can also register your trademark in any state where you sell your toy.
To determine whether your toy can be patented, you should conduct a search of previously issued patent grants by the USPTO to locate any existing patent that pertains to your toy. You also need to search for "prior art," which is any publicly available knowledge that relates to the creation of your toy that predates it. A patent search is not required before submitting an application; however, the USPTO will preform such a search as part of the application examining process. Preforming a search before submitting an application will give you an idea of the likelihood that the application will be approved. Searches can be difficult and time consuming, and you may wish to have aid from an attorney or online legal provider.
The USPTO is the only government agency that issues patent grants. A patent grant for your toy gives you the right to exclude anyone else from "making, using, offering for sale, or selling" the same toy. The grant also gives you the right to prevent the same toy from being imported. The typical patent grant is good for 20 years, starting from the date you file your application with the USPTO. An application for a patent grant requires a written description for your toy regarding its specifications; a drawing of the toy; and a statement under oath regarding ownership. An online document provider can help you with the application process.