How to secure your trademark

Entrepreneurs put lots of effort, time and money into establishing and developing their businesses. After creating something special, they want to be sure that they and those approved by them will be the only beneficiaries of their hard work. They also want to be distinguishable from their competitors. That is why companies and sole proprietors create trademarks and service marks and conduct their commercial activities in association with them.

 

A trademark is any word, letter, name, slogan, symbol, design, logo, shape, image, sound, color or combination thereof that is used or intended to be used in commerce. In short, it is a brand name. Trademark relates to goods and service mark relates to provided services. The same law protects both. 

 

Why to use a trademark/service mark?

 

·        to identify and distinguish your goods or services from those of other sellers or manufacturers;

·        to demonstrate to consumers and clients that all of your products or services come from one source (you or your company);

·        to signify to consumers and clients that all of your products or services are of equal quality.


The Trademark and Copyright Law states that trademark ownership rights arise from the use – “first in use – first in right”. So priority and ownership are governed by race to marketplace, not race to U.S Patent and Trademark Office (“USPTO”). Registration with USPTO does not grant the ownership, but it proves it and affords additional protection and advantages to the trademarks owners, which common law does not provide.

 

The registration of the trademark/service mark with USPTO:

 

·      grants to the trademark owners exclusive nationwide rights to use the mark on or in connection with the goods/services set forth in the registration and execute licenses to others for its use at the owners’ discretion;

·        gives constructive notice nationwide of the trademarks owners rights (mark shows up in trademark searches);

·        can be used as a basis for obtaining registration in foreign countries;

·        may be filed with U.S. Customs Service to prevent exportation of infringing goods to foreign countries;

·       helps to prevent others from taking advantage of trademark’s publicity by infringing the original mark, counterfeiting, operating under similar or confusing marks or committing other actions which may be detrimental to the trademarks owners;

·        enables to sue for infringement and invoke jurisdiction of federal courts;

·        affords legal presumption of the validity of the mark and its owner’s rights at courts;

·        allows to claim statutory treble damages, disgorgement of profits and costs for willfulness;

·        allows to use registered symbol ® to indicate the exclusive ownership rights; and

·        overall, is an incontestable evidence of the mark’s ownership.

 

U.S. Trademark and Copyright Law was developed to ensure that the intellectual property contributes to the development of the country’s economy, to encourage innovation and entrepreneurial spirit.

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