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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Difference Between a Logo & Trademark


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Can the Owner of a Registered Trademark Be Sued for Infringement?

Trademark law is derived from common law that was intended to prohibit companies from competing in the market using unfair and unethical business practices. Trademark law prevents the unauthorized use of a mark in commerce that might cause confusion among consumers as to the true source of goods and services. It also prevents competitors from diluting the reputation and "good will" the product or service has gained with consumers. A business can sue another business for trademark infringement, even if the trademark is registered, if the business bringing suit can prove an earlier date of "first use" of the mark and that it has suffered some sort of damages as a result of the infringement.

How to Obtain a Trademark

You obtain a trademark by using a logo, word, slogan or design that is associated with a product or service provided by your business. The key to establishing a trademark is using it actually and continually in commerce. The strength of your trademark rights depends on the uniqueness of your trademark, how long it has been in use and the size of the geographical area where the trademark is used. Although not legally required, registering your trademark with the United States Patent and Trademark Office (USPTO) provides the maximum legal rights and protection for your trademark.

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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