What is a Trademark and Why do I need one?
A trademark is essentially a brand that identifies your product. It represents the quality and uniqueness of a brand and helps the general public identify the maker and association particular goods and services with your business. For example, Apple has a tremendous reputation with consumers with its trademark which is used on various electronics such as personal computers, iPad iPhone and many accessories. Protecting a trademark or potential trademark through federal registration ensures that the product and its associated reputation are protected and recognized across the the globe. A trademark can be a word or phrase, a logo, or even a sound or a color. Continued use of the mark is required along with renewal in order to prevent another person from being able to establish rights to it. Similarly, a Service Mark is used for identifying the source of a particular service instead of goods.
What is a "Common Law" Trademark?
The term "common law" identifies the trademark rights developed through use, but those which are not governed by statute. Instead, common law trademark rights are those that have been developed under a set of judicial rights governed by state law. Common law rights can be offered to any word, phrase, image, etc. that a business uses in commerce to identify itself, its goods, or its services. Such rights are granted automatically upon use and extended to whoever can prove the first actual use of the mark in a given geographical area. Each state has it's own process for allowing state trademark registration. This option is typically used in conjunction with Federal registration. However, those only planning to maintain business in a local brick and mortar establishment may find state registration sufficient for their particular business.
Why should I get my trademark Federally Registered?
Federal registration, a system created by federal statute, is not required to establish common law rights in a mark, nor is it required to begin use of a mark. However, federal registration, if available, is almost always recommended and gives a trademark owner a wide variety of additional rights not typically available under common law.
Many companies, particularly those operating exclusively on a local level, may not feel they do not need to obtain federal registration of their potential trademarks. These companies might be comfortable relying on state trademarks laws and common law protections. However, with the platform of business constantly advancing, it is common for even the smallest and most local of businesses to find themselves in situations where they must offer their products and services online, such as we seen with the COVID 19 pandemic. This changes their target audience from local to a national and international marketplace because of the Internet's wide reach. Online, common law protections are not often sufficient to protect a brand from predatory competitors.
Given these conditions, one of the most significant reasons to file for federal trademark registration is to ensure the highest degree of protection is available to you. By federally registering a mark, the owner of that mark is given preferential and priority treatment in any dispute before court or administrative agencies such as with the United States Patent and Trademark Office (USPTO) and the Internet Corporation for Assigning Names and Numbers (ICANN). Thus, by registering your mark, you are not only protecting your brand from others who may try to use or tarnish your brand’s goodwill, but you are also restricting others from being able to use that as their domain name.
The most important reason for registering a mark with the USPTO is to notice both consumers and potential competitors that your mark is federally protected. Once registered, you are allowed to designate your mark with a registered trademark symbol (®) to indicate that the mark is, in fact, a registered trademark. This will grant you the right to seek legal action against any person or business who attempts to infringe on your mark. This can allow you to recover profits that they obtained as well as other monetary damages for putting your company brand in jeopardy.
Individuals and businesses should obtain federal registration for the brands that they contribute their hard earned time, energy and money to create.
Schedule a consultation to discuss ways to protect your brand through a registered trademark today!
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