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.

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.

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.

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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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How to Use TESS for Trademark

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What Are the Four Parts to Obtaining a Trademark?

Your trademark tells your customers that your products come from you. It distinguishes your goods and services from those of others. You can select a word, phrase, symbol, design or any combination of these elements to serve as your trademark. The strongest trademark is a fanciful, made-up word or image that is not confusingly similar to another party's goods. There are four basic steps to obtaining a trademark.

Enforcing A Trademark

Trademark law grants a monopoly on the use of a word, phrase, symbol or design that distinctively identifies a product used in commerce. You can protect your trademark locally by using it in commerce before anyone else does. You can protect it nationally by registering it with the U.S. Patent and Trademark Office. It is also possible to protect your trademark internationally. You are entitled to sue an infringing party and collect damages.

Can You Trademark a Variation of a Word?

Companies use specific words, phrases and images to distinguish their products from those of their competitors, including words that you will not find in the dictionary. These words, phrases and images become valid trademarks and service marks when companies use them according to trademark law. If you choose to register the word with state agencies or the U.S. Patent and Trademark Office, you will acquire additional resources to protect your brand. Using a variation of a word creates opportunities for you but also introduces some problems into the trademark process.

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