There is a high likelihood that wherever you look right now, you will see a trademark of some kind. It may be the “Dell” on your computer or the “Nike” on your shoes. But, though you encounter trademarks every day, you may not know exactly what one is and why someone would want one.
The law governing trademark is codified in Title 15 of the U.S. Code. Under §1127, a trademark is defined as any word, name, symbol, or device, or any combination thereof used in commerce to identify or distinguish goods from those manufactured or sold by others. The term service mark is the same with the exception that it is used to distinguish services, rather than goods. Frequently, the term “trademark” is used when referring to either a trademark or a service mark.
Registering Your Mark
It is important to note that registration of a mark is not required for protection. Rights to a mark can be established by using the mark in commerce. However, registering the mark does have significant benefits, such as:
- Giving constructive notice that the mark is owned by you.
- After using the mark for five consecutive years after registration, your right to use it is incontestable.
- If a violation occurs, it allows the registrant to recover defendant’s profits, any damages suffered by the registrant, and the costs of the action.
In order to register a mark, the owner must file an application with the Patent and Trademark Office (PTO). The application must state the applicant’s domicile, citizenship, date of first use of the mark, date of the first use of the mark in commerce, the goods in connection with which the mark is used, and a drawing of the mark. The PTO may reject the registration of the mark for several reasons, listed under §1052. For example, a portrait of a deceased U.S. President may not be used during the life of his widow unless she gives written consent.
Registration of a mark is effective for ten years. During the ten-year period the owner of the mark must submit affidavits to the PTO. These affidavits state that the mark is being used in commerce. The registration may be renewed for another ten years at the conclusion of each ten-year period. The application for renewal can be made at any time during the last year of the ten-year period.
The application may be done online using the Trademark Electronic Application System (TEAS). This is the PTO’s preferred method for application. While the PTO does provide online help for filing your application, it cannot provide legal advice. Therefore, regardless of how you plan on applying for registration of your mark, you should speak to an experienced intellectual property attorney before proceeding.
Help for Your Trademark
It is important for you to protect the marks you use to conduct business. The Philadelphia Small Business Law Center can help you complete your trademark registration. If you have any questions relating to trademark contact us today.