Are All Trademark Names Legally Protected?

By Victoria McGrath

All trademark names generally qualify for trademark protection. Basic trademark protections automatically apply to a trademark once it's used in the marketplace, to identify and distinguish a company's specific goods or services. The first company to use a unique identifying mark on its goods in commercial trade secures trademark rights in the mark. Trademark names include a variety of original words, phrases, signs and symbols. However, generic names, surnames, regional names and merely descriptive names do not qualify as trademarks. The trademark owner may chose to register the trademark with state and federal trademark offices. The U.S. Patent and Trademark Office processes all federal trademark registration applications.

Trademark Protections

United States trademark "common law" provides basic protection over trademark property rights. Common law generally refers to unwritten law. Under common law, any business that uses a unique mark on its goods in commercial trade automatically qualifies as the trademark owner. When two businesses use and claim ownership over the same mark, a legal dispute arises. Federal registration can easily resolve this type of dispute because it guarantees exclusive trademark rights to the registered owner.

Federal Trademark Registration

Federal registration offers the greatest trademark protection. The federal trademark registration process covers business names, logos and slogans. The registration application requires a description of the mark, drawing of it, dates of first use and product samples. The application includes several bases for filing, including "use in commerce," "intent to use," foreign registration and pending foreign application. A business can protect its trademark throughout the development phase with an "intent to use" trademark application. This type of trademark gives federal trademark protection prior to the actual use of the trademark in the marketplace.

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Date of First Use in Commerce

Trademark common law, state law and federal law all consider the date the owner first used the mark in commercial trade. The first business to use the mark on its products within a defined region qualifies as the legal trademark owner. Competing businesses with similar trademarks in the same marketplace often dispute the first date of use and legal ownership of the mark. As a result, businesses must be prepared to prove when they first used the mark. The federal registration process includes a signed affidavit of first use of the mark anywhere and the first use in commercial trade. The U.S. Patent and Trademark Office prohibits registration of the same or similar marks by different owners.

Infringement, Dilution and Loss of Rights

Regardless of common law, state and federal trademark protections, trademark holders must continuously protect their trademarks. The owner must use the mark continuously and prevent any other business from using it. Other businesses can easily steal trademarks, illegally use them on counterfeit products and diminish the quality of goods or services offered under the mark. Therefore, a trademark owner must take action against all illegal activity and take immediate legal action to stop any type of unauthorized use. Excessive and illegal overuse of the trademark name can weaken the product brand and its identity. Federal trademark registration provides the best protection against illegal activities that infringe on trademark rights.

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What Does "Date of First Use" Mean on a Trademark?


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Can I Trademark Before I Sell the Product?

Since the federal trademark registration process takes several months, it makes sense to apply for trademark registration as soon as you design your mark while in the initial stages of product development. Your company can file a federal trademark registration application before you sell any products. You can also potentially secure common law trademark rights in your name, logo or slogan through actual use in the marketplace, such as pre-sale marketing. Under common law, a company automatically secures trademark rights once the original mark is used in association with its goods or services offered in the marketplace.

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A trademark is a symbol, design, word, phrase or combination of these elements a business uses to identify its products to the public. While a trademark is active, its owner can take action in court against unauthorized use of the mark. A dead trademark, however, is no longer protected against unauthorized use. A mark can die for various reasons, including lack of use and misuse by an assignee.

How to Get a Trademark for a Comic Book Superhero Character

Trademarks cover comic book characters' names and logos. Any character's name or logo used on products offered in commercial trade may qualify as a trademark. A trademark generally contains any combination of original words, signs, symbols, phrases and designs. A trademark may not contain generic or merely descriptive terms, such as "bat" or "man". However, the character name "Batman" qualifies as a unique combination of words and the Batman logo qualifies as a unique design. Registration of comic book character names must not infringe on other trademark owners' rights.

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