Trademarks, What is it and how can I get one?
A trademark, or mark, is a word, phrase, or logo, which a person or entity uses to identify the source of the product. We are all familiar with some trademarks, which are found everywhere, from hamburgers to automobiles. Unlike patents, which require the inventor to file an application, a trademark may be applied for by a corporation. The key is that the person, or entity, who is making or selling, and marking the product, is the applicant for a trademark. It is possible to own a mark and license it, but there is required that the licensor have control of the quality of product, and the products the mark is used on, in order to legally be entitled to a mark.
The key to a mark is USAGE. Like so many things, if you don’t use it, you lose it. Moreover, usage of a mark is what grants the rights. Registration just allows certain federal rights to be enforced. There are common law rights which go along with simple use of the mark. There are specific limitations for what is an acceptable mark, and what is not. However, the specific limitations have huge gray areas located therein. This, then, may make the trademark application process or trademark litigation a difficult and confusing process.
I have found that the best method of evaluating whether to proceed with a trademark application is to conduct a trademark search in the United States Patent and Trademark Office. It is advisable that a search is conducted for appropriately classified U.S. registrations and pending applications for registration which might be considered to be confusingly similar. If your mark is one which falls into the “gray area” then you may wish to file an application for the supplemental register, rather than the principal register. Technically, this means that the mark is used for a period of five years, and if after that time, you still use the mark, and no one has objected to the mark, then the Trademark Office will grant a registration to your mark. The other course is to file an application for the principal register, which means that the mark, once approved, is registered, and you can use the official circled “R” with your mark. Until that time you may only use “TM” next to your mark, to place the world on notice that you intend to use that mark as your own.
Usually, a search does not include unregistered marks and marks that are registered with the states only. However, these can be searched at additional cost.