Most often people think that a lawyer or legal entity is required to apply for a Trademark. That is not the case. Any professional with in-depth knowledge of the Trademark law and regulations can complete the Trademark application.
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WHAT ARE THE BENEFITS OF A FEDERAL TRADEMARK REGISTRATION?
Owning a federal trademark registration on the Principal Register provides several advantages, including:
- Public notice of your claim of ownership of the mark;
- A legal presumption of your ownership of the mark and your exclusive right to use the mark nationwide on or in connection with the goods/services listed in the registration;
- The ability to bring an action concerning the mark in federal court;
- The use of the U.S. registration as a basis to obtain registration in foreign countries;
- The ability to record the U.S. registration with the U.S. Customs and Border Protection (CBP) Service to prevent importation of infringing foreign goods;
- The right to use the federal registration symbol ® and;
- Listing in the United States Patent and Trademark Office’s online databases.
Piracy, counterfeiting and the theft of intellectual property (IP) pose a serious threat to all U.S. businesses. Industry estimates of the cost of such theft range from $250 billion to 750,000 jobs per year. Small businesses often find themselves at a particular disadvantage because they often lack the resources and expertise available to larger corporations.
Small businesses also often lack the familiarity with the process of protecting their intellectual property: research conducted in Spring 2005 by the U.S. Patent and Trademark Office (USPTO) indicates that only 15 percent of small businesses that do business overseas are aware that their IP protection in the U.S. does not travel – that is, that a U.S. patent or trademark provides protection only in the United States. (From official US Government sources 2011)
Registering a Trademark
You can establish rights in a mark based on legitimate use of the mark. However, owning a Federal trademark registration on the Principal Register provides several advantages, including the following:
- Constructive notice to the public of the registrant’s claim of ownership of the mark;
- A legal presumption of the registrant’s ownership of the mark and the registrant’s exclusive right to use the mark nationwide on or in connection with the goods and/or services listed in the registration;
- The ability to bring an action concerning the mark in Federal court;
- The use of the U.S. registration as a basis to obtain registration in foreign countries; and
- The ability to file the U.S. registration with U.S. Customs and Border Protection to prevent importation of infringing foreign goods.
Any time you claim rights in a mark, you may use the “TM” (trademark) or “SM” (service mark) designation to alert the public to your claim, regardless of whether you have filed an application with the USPTO. However, you may use the Federal registration symbol “®” only after the USPTO actually registers a mark, and not while an application is pending. Also, you may use the registration symbol with the mark only on or in connection with the goods and/or services listed in the Federal trademark registration.
Starting the Process:
Step 1: Is your product eligible for a trademark?
Most U.S. applicants base their application on their current use of the mark in commerce, or their intent to use their mark in commerce in the future.
What is “use in commerce”? For the purpose of obtaining Federal registration, “commerce” means all commerce that the U.S. Congress may lawfully regulate; for example, interstate commerce or commerce between the U.S. and another country. “Use in commerce” must be a bona fide use of the mark in the ordinary course of trade, and not use simply made to reserve rights in the mark.
Generally, acceptable use is as follows:
- For goods: the mark must appear on the goods, the container for the goods, or displays associated with the goods, and the goods must be sold or transported in commerce.
- For services: the mark must be used or displayed in the sale or advertising of the services and the services must be rendered in commerce.
If you have already started using the mark in commerce, you may file based on that use. A “use” based application must include a sworn statement (usually in the form of a declaration) that the mark is in use in commerce, listing the date of first use of the mark anywhere and the date of first use of the mark in commerce.
A properly worded declaration is included in the USPTO standard application form. The applicant or a person authorized to sign on behalf of the applicant must sign the statement.
The application should include a specimen showing use of the mark in commerce.
Step 2: Conduct a trademark search
The next step is to search the Us Patent and Trademark database, before filing your application, to determine whether anyone else is already claiming trademark rights in a particular mark. If your mark includes a design element, you will need to search it by using a design code.
Step 3: Registering a Trademark
One2conuslt can apply on your behalf to obtain a Trademark from the US Patent and Trademark. The process takes approximately 3 to 6 months to complete. (Detailed timeline is provided with client contract)
Registering a Trademark Overseas
Federal registration is not valid outside the United States. However, if you are a qualified owner of a trademark application pending before the USPTO, or of a registration issued by the USPTO, you may seek registration in any of the countries that have joined the Madrid Protocol by filing a single application, called an “international application,” with the International Bureau of the World Property Intellectual Organization, through the USPTO. Also, certain countries recognize a United States registration as a basis for filing an application to register a mark in those countries under international treaties. The laws of each country regarding registration must be consulted.
Types of Trademarks
Trademarks protect words, names, symbols, sounds, or colors that distinguish goods and services. Trademarks, unlike patents, can be renewed forever as long as they are being used in commerce. Specific types of trademarks include:
- Service marks identify and distinguish the source of a service rather than a product.
- Certification marks are any word, name, symbol, device, or any combination, used, or intended to be used, in commerce by someone other than its owner, to certify regional or other origin, material, mode of manufacture, quality, accuracy, or other characteristics of such person’s goods or services, or that the work or labor on the goods or services was performed by members of a union or other organization.
- Collective marks are trademarks or service marks used, or intended to be used, in commerce, by the members of a cooperative, an association, or other collective group or organization, including a mark that indicates membership in a union, an association, or other organization.
Copyrights protect works of authorship, such as writings, music, and works of art that have been tangibly expressed. The Library of Congress registers copyrights which last for the life of the author plus 70 years. Books, movies and musical recordings are all examples of copyrighted works.
There is no such thing as an “international copyright” that will automatically protect an author’s writings throughout the entire world. Protection against unauthorized use in a particular country depends, basically, on the national laws of that country. However, most countries do offer protection to foreign works under certain conditions, and these conditions have been greatly simplified by international copyright treaties and conventions.
Contact One2consult, Inc. for a “free” Trademark evaluation, a $250 service for free!
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