What Is a Trademark?

A trademark is a way that a business can distinguish itself or its goods from other businesses and similar goods. A trademark can consist of words, numbers, symbols, names or other devices that let the public know about the goods or services.

Trademark Identification

A trademark is distinguished by the use of "TM," "SM," or an "R" in a circle. The "TM" and "SM" marks can be used by anyone who wants to note that the preceding information or symbol is a trademark. These marks can be used without having to register the trademark; however, the "R" in a circle mark can only be used on a trademark that has been registered with the U.S. Patent and Trademark Office. That symbol can only be used once the trademark is registered and not during the application process.

Trademark Rights

When a business uses a trademark, basic trademark rights prohibit another business from using a similar trademark on a similar item in a way that can be construed as trying to confuse a consumer. If another business sells a similar item or service, the trademark used by that company must be clearly different.

Just coming up with a trademark doesn't offer protections for that trademark. Instead, the trademark becomes protected when you sue the trademark. It has to be used in the marketplace on a good or service to be protected. Additionally, using the trademark on a website that the public can view establishes the trademark protection.

Trademarks for Future Use

If a business comes up with a trademark for a product or service that hasn't been launched yet, they can file for an "intent to use" trademark. This can prove especially helpful in very competitive markets. There is a time limit in which the trademark has to be put into use. The mark must be put to use just like any other trademark within six months to three years after the business applies for the intent to use trademark through the USPTO. This method helps to protect the trademark from infringers from the date of application and not from the date of use.

Trademark Protection

Once a business uses a trademark, other businesses can't infringe upon the rights of that trademark. Individuals who find their trademark being used by another company have the right to tell that company to stop. The first step to doing this is to send a letter demanding the user cease and desist using the trademark. If that doesn't work, filing a lawsuit for trademark infringement is the next step.

Filing a lawsuit serves two purposes. The main purpose is that it can prevent the other business from using the trademark in the future. The lawsuit can also seek damages caused by the illegal use of the trademark.

Dealing with trademarks is something that can prove to be complex for business owners. While these marks serve a very important purpose, keeping them protected can be difficult. Working with an attorney who has ample experience dealing with trademarks and trademark litigation can help business owners to ensure their trademarks are properly protected and that businesses that infringe upon those rights are held accountable.

The information on this page is meant to provide a general overview of the law. The laws in your state and/or city may deviate significantly from those described here. If you have specific questions related to your situation you should speak with a local attorney.

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