A Trademark is a Valuable Asset
Before you launch a new business, product, service, or release a patented invention into the marketplace, it's very important that you do a comprehensive trademark search and get clearance for your mark. It's not uncommon for a business to sink a lot of money and time promoting a new product or service and then find out all their efforts have been wasted because their mark was already in use by another business.
Trademark law has a unique position in intellectual property law because it protects both trademark owners and consumers.
The Law protects trademark owners by stopping a competitor from using a trademark which they have no right to, and it protects consumers because over a period of time, consumers tend to favor a business by its trademark. The law recognizes that loyalty and will not allow one company to borrow another's mark. This law even goes a step further - it will also prevent another company from using a mark that is similar to yours. This prevents a business from using deceptive marketing tactics on consumers.
Unlike your rights in a patent or a copyright, a company’s rights in a trademark can last indefinitely. As long as you continue to use the mark and renew the registration regularly, you're protected.
Contrary to popular believe, a registered trade name is not a registered trademark. This is a topic that caused a lot of confusion among entrepreneurs and new businesses. So let me try to clear this up.
Registration of your trade name with your Secretary of State does not mean that the trade name is not infringing on someone else's trademark. To avoid this mistake, a trademark clearance search should be done to ensure that a trade name is not infringing on the rights of another business.
And to get nationwide trademark protection, your mark should also be registered with the U.S. Patent and Trademark Office in Washington.
Trademark Protection for Domain Names (URL)
The interaction between trademarks and domain names has created a minefield for businesses. If you don't have solid trademark protection, your reputation, and even the company itself, can be hijacked by cybersquatters
A cybersquatter is simply an individual or business that registers a domain name (URL) with the sole intent of selling it to the highest bidder. If your company has the proper trademark protection set up, you'll never have to deal with this ugly issue.
Having a trademark on your company’s name, as well as it products and services, provides an effective way for you prevent another individual or business from holding your company's assets hostage.
Selecting a Trademark
It's important to first select a mark that can be registered as a Federal Trademark.....long before you want to introduce the product or service into the marketplace. So you should be extremely careful in selecting a mark so that you can keep the ability to stop others from using your business, service, or product names.
A mark can be classified into four separate categories:
Here's a little more detail on these categories
Trademark rights cannot be granted to marks that are generic. By generic I mean a term that is used everyday such as car, ball, soup, etc.
Descriptive marks are just that - they describe the product or service that the mark is used for. In my opinion, Descriptive Marks are not a good choice because Trademark protection is only extended to descriptive marks when they have attained a secondary meaning. By that, I mean that a mark has been used for so long by one business that the mark is instantly associated with that company.
Suggestive marks are just that - they suggest or hint at some quality or component of the products or services with which they are used. Typically a suggestive mark is considered to be stronger than a descriptive mark because it does not require proof of a secondary meaning.
Arbitrary Marks (aka Fanciful Marks)
Fanciful or Arbitrary marks are the most distinctive of all marks and receive the highest level of protection under our intellectual property laws. The marks are typically unknown before they become associated with a service or product. A example of an Arbitrary mark would be the mark IBM®.
Not only should you conduct a trademark search all state and federal registered trademarks, but you should also do a search on all pending trademarks. Depending on those results, you may want to secure federal registration for your mark.
Federal registration provides notice to any potential user of similar marks, even if these other businesses are not even aware of your mark. And a federally registered mark also enjoys this added benefit - the owner of that mark is entitled to use it nationwide.
If you would like to receive a detailed trademark information packet for free, then just spend a minute or two and request it. This information will outline the steps you need to take to obtain trademark protection for a new business, product or brand identity, an estimate of the associated legal fees and costs involved, as well as a our qualifications and experience in trademark matters.
At Gold & Rizvi, P.A., our sole focus is protecting ideas and identities. If you need assistance with your trademark issue and require a Trademark Law Attorney, feel free to contact us.