What Is a Trademark?
A trademark is a symbol that represents the source of a product. Similarly, a service mark is a symbol that represents the source of a service. The “symbol” may be words, names, images, sounds, colors, or any other indicator that identifies the source of the product or service. Together, trademarks and service marks are called “marks.” In practice, however, many people and organizations, including legal professionals, refer to all marks as trademarks. Thus, the terms “trademark” and “mark” are essentially synonymous.
A mark identifies a source of goods or services. Trademark law evolved out of the need to provide this identification to encourage merchants to produce high-quality products or services and allow consumers to seek out preferred merchants. By branding one’s products, a seller can inform consumers as to the level of quality they should expect in connection with that brand (for better or worse).
To support the purpose of trademarks, the law prevents others from using a mark in a way that is likely to cause confusion among consumers.
Common Law and State Registration
A business can gain rights in a mark as soon as it uses the mark in connection with commercial activity. Those rights come from state common law, which varies from state to state. Marks can also be registered at the state level through trademark offices of specific states. Mark usage and/or registration in one state might not extend any rights to other states.
Federal Registration at the USPTO
The federal government instituted a mark registration system that provides substantial benefits over common law and state registrations. The United States Patent and Trademark Office (USPTO) oversees this system. Registration of a mark begins when an applicant files an application with the USPTO. Only after passing through a rigorous examination process will the USPTO grant the application and it will become a registered mark.
Benefits of Federal Mark Registration
Even though trademark rights form upon commercial use, registering the mark with the USPTO can deliver substantial benefits:
- Federal registration gives the registrant a legal presumption of ownership of the mark
- A mark application receives nationwide priority the day the applicant submits it to the USPTO
- The filing date may serve as a basis for later-filed international applications
- Owning a federal registration creates subject-matter jurisdiction in federal court, should the registrant sue another for trademark infringement
- An owner of a federal registration may record the registration with the U.S. Customs and Border Protection Service to prevent importation of infringing products.
How Long Does Protection of a Mark Last?
A mark can last indefinitely–as long as the mark owner continues to use it commercially and properly maintains it. (i.e., paying the required fees and filing the proper declarations with the USPTO). There are declarations and fees due by the sixth year after registration, the tenth year after registration, and every ten years after. If the mark owner meets these requirements, the registration will never expire.