Business Trademark Law

Each year, the United States Patent and Trademark Office registers thousands of new corporate, collective, and personal logos. Additionally each year, the courts also review thousands of cases being litigated over instances of trademark infringement. The best way to protect the name, trademark, or logo of your products and services is to apply for a trademark protection with the help of an intellectual property lawyer, who will inform clients about the intricacies of trademark law.

To register a mark with the United States Patent and Trademark Office, owners must first prove that his or her trademark is original and unique, meaning that the trademark in questions must fall under a strict set of design guidelines, so as not to create violations of other trademark owners' rights. After a round of fees and a short waiting period for a decision from the federal government, the trademark is certifiably the intellectual property of the owner. Infringers can be prosecuted for trespassing on this intellectual property aside from a few notable exceptions:

Reasons the courts may allow trademark infringement include:

  • Abandoned trademarks that have not been used for over five years can be considered public domain and must be re-registered for exclusive use
  • "Fair use" provisions include mention in advertisements and reviews
  • Genericized trademarks can also be used freely by the public

Trademarks vary, depending on the nature of the business' offered product or service. Trademarks can also evolve over time, as certain products become recognizably distinctive by the general population. The four types of specialized trademarks include certification trademarks, collective trademarks, defensive trademarks, and genericized trademarks.

Certification trademarks, when placed on products, signify some form of approval or accreditation that notes the product or service is in accordance with a nationally accredited standard. Some examples of the more famous examples of this could include the trademarked "made in Idaho" stamp for potatoes, or the phrase "UL Listed" on electrical equipment, which exists as safety verification from the nationally renowned Underwriters Laboratories.

Collective trademarks are typically owned by an association, organization, corporation, or other group entity as a means of allowing members to distinguish themselves from others. The collective trademark would ideally then iterate a level of professionalism and quality that others outside of the organization cannot replicate. One of the most commonly referred to collective trademarks would be that used by the Society of Certified Public Accounts, or the distinguishing "CPA" lettering.

Defensive trademarks protect owners retaining the rights to famous trademarks from allowing their intellectual property to suffer dilution. For example, a new brand of vacuum cleaners could not use a symbol in any way similar to that of Coca-Cola. This would cause consumer confusion stemming from the nature of the unfair association, and in turn, would infringe upon the trademark rights of the well-known company by the lesser-known company attempting to capitalize on their intellectual property and more than likely, marketing and advertising efforts over the years as well.

Genericized trademarks cannot be acquired initially or any short period of time. When a brand becomes synonymous with a product or service due to its popularity, the owner's intellectual property rights can be lost. Obviously, the extremely subjective nature of this decision calls for serious litigation on behalf of trademark owners against any person's wishing to infringe upon their trademark rights on the grounds of genericized trademarks. An intellectual property lawyer will aggressively pursue any and all infringements for corporate and individual clientele. Some of the more well-known examples of genericized trademarks include Kleenex, Band-Aids, and Jell-O.

Whereas patents protect specific ideas or inventions and copyrights protect text, music and images, trademarks promote and protect the actual name and reputation of a service or a product. They exist to help consumers distinguish their preferences in the daily flood of brand names and information. Those businesses with unregistered trademarks can sue infringers with a tort law, if their service or product is well known. By registering a trademark with the government, you ensure severe prosecution penalties and the safety of your trademark.

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