Did you know that your use of a word, phrase, logo, or related identifying feature (what is referred to as a mark) automatically has legal trademark protection when you use it in commerce? As long as you are not infringing someone else’s mark, you establish your trademark rights from the use of the mark by simply selling a good or service or even just offering that good or service for sale.
However, business owners generally misunderstand trademark rights from use and why they should actually register their trademarks at the United States Patent and Trademark Office. While you may have trademark rights based on the use of the mark in commerce, there are still excellent reasons to protect your mark through official registration.
Trademark rights are one of the oldest forms of intellectual property protection in the world, developing from ancient trades and guilds to identify the quality of one craftsman or tradesman over that of its competitors. This enabled people to properly choose the goods or services they wanted in an open, relatively unregulated market.
Over time these marks on goods and services obtained legal protection from the government that allowed the owner of the mark to enforce his or her sole use of that mark and prevent competitors from counterfeiting or even trying to financially benefit by falsely associating their products with the mark.
It is important to understand that trademark laws are actually designed to protect the consumer, not the owner of the mark, by associating quality with a particular product. The mark identifies a good or a service that the consumer uses. If the consumer likes the good or service, then when they want to use it again, they know what they are getting because the mark lets them know that it’s the same company, producing the same quality product or service.
If another company was allowed to use the same (or even a closely similar) mark, the consumer could be confused and end up spending money on something they did not intend to and could be harmed by losing their ability to choose among competitors in a given market.
Because of this potential for confusion, U.S. law allows for what is known as common law trademark rights. These rights are governed by each state and provide trademark rights from the use of a given mark in commerce in that state without any sort of registration. So, if you own a company and sell a product, the name of that product – provided it doesn’t infringe on someone else’s trademark – automatically has trademark rights from use.
You can use the symbol TM next to the name of your company, logo, product name, etc, for which you claim trademark rights. This allows you to prevent competitors from infringing your trademark.
There are important reasons to register your trademark with the Trademark Office, especially if you will be selling a product or good outside of your local area or across state lines. Contacting an attorney with experience in patents and trademarks is important to navigating the federal registration system, which includes trademark searches and evaluation of how the mark will be used. Often, businesses fail to obtain broad protections they are eligible for because they fail to properly file their registration.
The damages that can be awarded to the owner of a federally registered mark are generally much more serious than what state law allows. Federal trademark law is also a much more robust set of laws that enables the owner of a trademark to more effectively enforce the use of their trademarks.
Federal registration also allows a business to file what is referred to as an intent to use trademark application, which is not available at the state level. Because state common law trademark rights are established solely through use, there is no trademark protection until you’re actually using the trademark in commerce. That is, you must be selling something or at least have it offered for sale in order to obtain the protection.
This can cause problems if you are still developing a product and the packaging that goes along with it. A competitor could end up beating you to the market with the same name, and there is nothing you can do to stop them unless you file an intent to use trademark application.
For example, let’s say you’re starting your own electrical contracting business. You come up with a great name for your business and a nifty slogan. You send your truck to the paint shop to have decals put on it to advertise your business, you have t-shirts made up with the logo, and all the associated marketing material, website, etc., to promote your business. But during that time, a competitor has come up with the same name and slogan and started advertising before you.
They now have the right to that name and slogan, and you have to go change everything.
However, with federal registration, you can file what is known as an intent to use the application when you decide to start using the mark, which provides you time to develop a product and get it to market, at which time you can convert your mark to a full trademark.
Trademark rights through use provide valuable protection that most business owners don’t even know they have. Contacting an experienced intellectual property attorney to discuss your particular brand, goods, and services will assist in obtaining the strongest trademark protection for your business.