You don’t have to register a trademark. You can use one in commerce, and it will acquire what is called “common law rights.” These are pretty strong, so why bother registering? Because registration gives you two things:
- The presumptive right to exclusive use of the mark nationwide. The USPTO will not register a mark if it is likely to create confusion with another mark. If you register your mark and someone else tries to use a confusingly similar one, you can sue them for infringement, and you’ll probably win.
- If you ever have to sue someone for infringing your mark, you’ll be able to ask for money damages. If all you have is common law rights, the best you can do is ask the court to order them to stop using it.
Money damages are a big deal because trademark infringement is willful if the infringer has any reason to know about your mark. This means that if you register, then anyone who decides on their own to start using a similar name for similar products any time after that is automatically liable for all the profits they made from that use from day one. They don’t get the excuse of “we didn’t know.” To get damages instead of an injunction, however,
What’s a Trademark?
A trademark refers to a word, phrase, or symbol for identifying specific sellers or manufacturer products and differentiate them from other traders products. Trademarks are governed by the laws of each state, as well as federal law.
A trademark helps identify the source of the goods or services. Furthermore, being a trade dress, it features a product’s packaging and appearance and that includes the size, texture, shape, appearance and graphics such as a website or retail store.
Marks to Register as Trademarks
You may want to register a trademark to protect the name of your business, product, or service. Registering a trademark can prevent others from using a similar mark and eliminate the chance of consumer confusion in the marketplace.
Most marks that are used in commerce can be registered, including:
– Names (including personal names)
– Combinations of words, letters, and numbers
You can also apply to register a sound, color, or scent as a trademark.
Process of Registering a Trademark
The US Patent and Trademark Office offers a step-by-step process for registering a trademark. You should first create an account in the Trademark Electronic Application System (TEAS) to get started.
Once you have set up your account, you will need to fill out the online application, which asks for information about your business, your contact information, and the mark you wish to register.
The application requires a drawing of the mark and examples of its use on the packaging or in advertising. After completing the application, you will need to pay a filing fee of $225 to $400.
Finally, once the USPTO receives your application, an examining attorney will review it. If they decide that there are no issues with registration, they will publish it in the Official Gazette, a weekly publication of the USPTO. During these 30 days, other parties may object to registration if they believe that the mark would infringe on their intellectual property rights or if they believe that it would confuse customers. If no one objects during those 30 days, your trademark will be registered.