Trademarking Rules
A trademark is a unique indicator that identifies an individual, business or other legal entity. A trademark can be a design, a slogan, a name such as "Betty Crocker," a shape like McDonald's Golden Arches, a form of packaging, and even a color combination. If you use a trademark, it is critical that you register it in order to prevent others from hijacking your business's goodwill for the benefit of their own products or services.
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Required Characteristics of a Trademark
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A trademark must be distinct enough to distinguish it from other products or services in the same category. Trademarks must also be capable of tangible, graphical representation. Finally, a trademark must be actually used and be attached to or applied to the goods or services for which it is registered, so that the public will associate the trademark with the product.
Establishing a Trademark
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Although laws vary, in most jurisdictions a trademark may be established in one of two ways--through actual use or through registration. In the United States, a trademark must actually be used before it can be registered, and the trademark can be protected by the original user only for the product category to which it belongs. In other countries, the trademark owner is the first party to register a particular trademark.
Trademark Registration Procedures
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In order to register a trademark in the United States, the registrant must perform a trademark search with the U.S. Patent and Trademark Office, or USPTO, in order to confirm that the trademark is indeed unique for the relevant product category. The registrant then identifies the product category to which the trademark applies, creates a clear graphical depiction of the trademark, and files an application with the USPTO.
Maintaining a Trademark
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Trademark owners must actually use their trademark in the course of business in order to maintain their trademark rights. If enough time elapses--typically five years--without use of the trademark, trademark rights may lapse.
Enforcement
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A trademark owner may file a trademark infringement lawsuit if the trademark has been misused by another. Many ambiguities exist in trademark law, however--whether the defendant's trademark is sufficiently similar to the plaintiff's trademark, whether the plaintiff's trademark applies to the product category for which the defendant is using it, and whether the infringement was intentional or not, which will reduce the amount of damages. If the plaintiff's trademark is not registered, an infringement case will be more difficult to win, and it will be particularly difficult to prove intentional infringement.
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