Newspaper columns, the name of publications, products and other services all rely on a brand name, logo or trademark to identify their goods or services and distinguish them for others. Our point is that trademarks are an important property right to build recognition for your products or services.
A trademark is a word, name, symbol or device which is used in trade with goods to indicate the source of the goods and to distinguish them from the goods of others. A servicemark is the same as a trademark except that it identifies and distinguishes the source of a service rather than a product. The terms “trademark” and “mark” are commonly used to refer to both trademarks and service marks.
What Do Trademarks Do?
Trademark rights may be used to prevent others from using a confusingly similar mark, but not to prevent others from making the same goods or from selling the same goods or services under a clearly different mark. Trademarks which are used in interstate or foreign commerce may be registered with the U.S. Patent and Trademark Office, and most trademarks can also be registered in specific states. You do not need to register a trademark in order to hold rights in the mark, however. You can establish rights in a mark based on your legitimate use of the mark in a business or commercial setting.
When can a trademark owner stop someone else from using the same or similar trademark?
Trademark protection is designed to prevent customer confusion. Accordingly, whenever someone uses a trademarked word, phrase or symbol that may cause customer confusion, the trademark owner can go to court and prevent further use of the confusing trademark. In addition to preventing other people from causing confusion, trademark owners can sue trademark infringers for damages caused by customer confusion.
As a business, your intellectual property is one of your most important assets and you must protect it. Protecting your intellectual property includes preventing others from using your trademark, or something similar, and depends on many factors, such as:
- Whether you can establish “active use” of your mark
- Whether consumers would be confused by the infringer’s use of your mark or a similar mark
- Whether the infringer’s use of your mark or a similar mark is diluting the power of your mark
- Whether the infringer is selling or offering similar goods or services
- Whether the infringer is using your mark or a similar mark in a similar geographic area
- Whether the infringer is using your mark or a similar mark in a similar market
Actively Using a Trademark
In order to protect your trademark, you must first put the mark into “use”. Using a trademark is established by putting the mark to use in a marketplace to identify goods or services. You don’t actually have to sell any trademarked goods or services, it’s sufficient to legitimately offer products under your mark to the public.
For example, Sara creates a website for her catering business, UnbelievableCatering.com, and offers goods and services on her website under the trademark “Unbelievable Catering”. Regardless of whether Sara ever makes a sell or has a single customer, her legitimate offering of catering services on her website available to public is sufficient to establish “use” of her trademark, thus she will be able to protect her trademark against infringement.
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