An individual who uses a trademark identifies a source of goods and services by using a word, phrase, or design. Trademarks are registered at the United States Patent & Trademark Office (USPTO) and used to distinguish products and services from one another. This article will explain what kind of trademarks are available, how they work, and how to apply for them.
What Are Trademarks?
A trademark is a distinctive sign or symbol that identifies your business as the source of its products and services. It may consist of words, phrases, symbols, colors, designs, sounds, smells, or any combination thereof. For example, “Apple” is a registered trademark because it represents a company whose products include computers and other electronic devices.
If someone uses your mark without your consent, you can take legal action against them. A trademark registration gives you exclusive rights to use your mark.
Who Can Use a Trademark?
Anyone can apply to register a trademark if he or she meets certain requirements. All applicants must submit an application form and pay a filing fee. To qualify for registration, your mark must be unique and non-functional. Your mark must not infringe on anyone else’s intellectual property rights. In addition, your mark cannot be misleading or deceptive.
What Types of Marks Are Available?
There are two ways to obtain a federal trademark: through the U.S. Patent & Trademark Office or via private registration. Private registration allows individuals and businesses to register their own trademarks. However, only companies incorporated under state law can file for federal registration. The USPTO has the authority to grant federal registrations to all applicants who meet specific requirements. Federal registration provides a number of benefits, including exclusivity. Exclusivity means that once you have obtained federal registration, no one else can use your mark unless you give them written permission. If you do not want to wait for the USPTO to process your application, you may choose to register your mark privately with the State Intellectual Property Office (SIPO). SIPO will issue a certificate of registration to you after reviewing your application and determining whether your mark is eligible for registration. Foreign nationals living outside the United States can register under this type of system. If you don’t register your trademark before you start selling products or services, someone else may have already registered your desired mark. The earlier you apply, the better your chances of getting a mark. Several types of businesses and individuals can file for trademarks. These may include individuals, businesses and companies that sell goods and services, or those that use their marks to identify their products and services. Yes! A business entity can own a trademark. However, a business entity cannot be the owner of a trademark if it uses the trademark. For example, a company cannot own a trademark if it sells its products under its own name. Rather, the company must pay another company to use its name on its products.Federal Registration:
Certain classes of marks are eligible for federal registration. These classes include:
Private Registration:
When Should I Apply for a Trademark?
Who Can File for a Trademark?
Can My Business Entity Use a Trademark?
What Are Some Examples of Trademarks?
Trademark examples include:
- Apple® Computer
- McDonald’s®
- Nike®
- Coca-Cola®
- Starbucks®
- Microsoft®
What Is a Service Mark?
A service mark is a word, phrase, design, or other distinctive sign used to identify and distinguish the services of one seller from those offered by others. You can obtain a service mark through filing an intent-to-use application at the U.S. Patent and Trademark Office.
What Is a Trade Dress?
A trade dress is the total image and overall appearance of a product or service. It includes all aspects of packaging, labeling, logos, slogans, designs, graphics, and advertising. You can obtain a trade dress through filing an intent-to display application at the U. S. Patent and Trademark office.
What Is a Colorable Imitation?
A colorable imitation is any mark that looks like a registered trademark but does not actually infringe upon the trademark rights of the trademark holder. A colorable imitation can be determined by examining the following factors:
- Similarity between the marks;
- Similarity between the goods/services marketed by the parties;
- Sophistication of consumers;
- Likelihood of confusion;
- Evidence of bad faith.
What Does “Colorable Imitation” Mean?
In order to qualify as a colorable imitation, the imitating mark must meet two requirements: 1) it must be similar enough to the protected mark so that it would deceive the average consumer into believing that the imitated mark was authorized by the trademark owner; and 2) the imitating mark must be sufficiently different from the protected mark so that no reasonable consumer could confuse the imitated mark with the protected mark.
Conclusion
If you are considering applying for a trademark, you need to understand what trademarks are, how they work, who can register them, and when you should do so. You also need to know about the various types of trademarks available, including service marks, trade dresses, and colorable imitations.
