Trademarks
Walker & Jocke has been recognized repeatedly as a top patent and trademark firm in the United States by Intellectual Property Today.
What is a Trademark?
A trademark is one or more words, symbols or designs that are used or are intended to be used to identify the source of goods or services. Brand names and logos are examples of trademarks. A color, sound or smell may even be used as a trademark.
The term “service mark” is sometimes used to refer to a type of trademark that is used for services.
Selecting New Trademarks
The best trademarks are those that are distinctive and have no relation to the goods or services with which they are used. Examples of distinctive trademarks are made up words like “Google” and “Teflon.”
Words that are somewhat suggestive of the goods or services, or properties of the goods or services, can often be protected as trademarks, but are not as strong. Words that are merely descriptive of the goods or services cannot be protected as trademarks.
When selecting a new trademark, it is best to have more than one trademark in mind. Often the first choice for a new trademark is not available. It is advisable to have the availability of a new trademark investigated by a trademark attorney before spending money on promotional material that includes the new trademark.
Registration of Trademarks
Trademarks may be registered with the U.S. Trademark Office. Usually, once a trademark has been registered, the owner of the registration is the only one in the U.S. who many use the mark in conjunction with the goods and services for which it has been registered. Registration may be applied for at any time, including before a mark is in use.
When a mark has been registered, the owner is entitled to use the registration symbol (as shown to the right) in conjunction with the mark. Until the mark is registered, the “common law” trademark symbol “TM” (“SM” for service marks) may be used.
In the U.S., limited protection is granted for unregistered marks, as well as unique color schemes and distinctive stylistic features that are used in conjunction with goods and services. Therefore, when designing products or selecting names, it is necessary to avoid similarity to a competitor’s mark or product appearance, even if those are not federally registered trademarks.
Use of Trademarks in Other Countries
Trademark rights are granted on a country-by-country basis. Before introducing a product or service with a new trademark into a country, a search should be conducted to verify that someone else does not own the mark in that country. Also, many countries require actual registration of the mark with their trademark office before a user may claim any rights in the mark.
Use of Non-Owned Trademarks in Product Literature and Advertising
Sometimes it is necessary to refer to another company’s name or trademark in advertising or product literature. This is permissible only if done properly. It may not be legally permissible to place your trademark on another company’s product without an agreement that authorizes such marking.
The selection and use of trademarks requires careful planning. It is important to work with an attorney experienced in trademark protection to develop a comprehensive protection program before undertaking marketing of new products or services.
Intellectual Property Audits
Many businesses only think about protecting their patents, trademarks, copyrights or trade secrets after they have encountered a problem. It is much less costly to have a plan for protection of your valuable “intellectual property” so that problems can be avoided.
One approach to avoiding problems is to have an “intellectual property audit” conducted. An intellectual property audit involves having an attorney experienced in intellectual property review the business activities and the protection you currently have. Such reviews usually uncover areas in which protection can be improved at a very low cost. Just like an annual physical checkup by a doctor, an annual review of intellectual property protection may avoid serious problems later.