Trademark Law

A trademark is defines as a symbol, word or sound, used by an individual or business entity for the purpose of identifying their goods and to distinguish their product from other similar products.  A trademark is identified by the symbol “™”, which will generally appear on a product in a place that is visible to the public.  Trademarks can be just as important for long-term commercial success as a patent if product uniqueness and recognition are important factors for an invention.

What Do Trademarks Cover

A trademark covers specific goods and services, but does not apply to a particular technology.  Trademarks cover a product to distinguish it from other similar products.  For example, one brand of athletic shoe versus another brand of athletic shoe – while both are sneakers, each has a unique trademarked brand attached to it.

How To Apply For A Trademark

To apply for a trademark within a specific state, a business must be currently using the mark in connection with the goods or services being sold within the state.  To apply for a Federal trademark with the U.S. Patent and Trademark Office (“PTO”), an applicant must:

  • Currently use the specific mark on goods or services that are used commercially in interstate commerce; or
  • Apply for the trademark based on a bona fide intention to use the specific mark in within the following 6-months.

How Are Trademarks Enforced

Trademark owners are required to do their own policing and enforcement of their trademark.  While the U.S. Patent and Trademark Office (“PTO”) grants trademarks, the Office does not enforce them against those who use a trademark without license.  Trademark owners must take steps to either monitor the use of their trademark on their own, or when necessary, enlist the services of companies who monitor patented and trademarked items for possible infringements, known as “trademark watches”. 

To enforce a trademark, the trademark owner may send a “case and desist” letter to the infringer, notifying them of their infringement and asking that they cease use of the trademark immediately.  If the letter does not work, litigation may be necessary to stop a business that is using a trademark without authorization or license from the trademark owner.  If a trademark is registered with the U.S. Patent and Trademark Office (“PTO”), the owner of the trademark may be entitled to recover treble damages (i.e. three times the actual damages) plus attorney’s fees, from the infringer.

When Do Trademarkst Expire?

Trademarks, unlike patents, do not have a set expiration date provided they are continuously used in a commercially proper way.  Trademarks must be renewed every 10 years, and are renewed in 10-year blocks.  If a trademark lapses and there I failure to submit the required proof that the trademark is still be used for commercial purposes, the trademark will lapse in the time between year 5 and 6 after non-renewal occurs.

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