Often, the most valuable assets for a small company are trademark rights. A trademark has two functions. The first function is to identify goods as to source. Note that although "goods" are used herein, the information described also applies to services. Second, the trademark functions to distinguish goods from other goods.
Trademark rights begin upon first use in commerce, and become stronger over time. Upon first use of the mark, it is permissible to use the ™ symbol on the mark. Often called a "common law trademark", an entity is free to use the symbol to place others on notice that the entity considers the mark to be its trademark.
Use of the ® symbol, however, can only be used after an entity has obtained a federal trademark registration. Once a mark has been used, an application for trademark registration can be filed. Alternatively, if the mark has not yet been used in commerce, one can file an application based upon a bona fide intent to use the mark. By filing an application in this manner, rights to the mark can be preserved for later use of the mark.
Prior to use of a trademark, a trademark search or clearance should be conducted. The purpose of the search is to determine if the mark is being used by another entity. The search also helps to identify similar marks used for related goods which could be confusingly similar. By conducting the search, substantial costs can be avoided if a desired mark is being used by another or is considered to be confusingly similar to the mark of another. Once the search is complete, an application for registration of the desired mark can be filed. Information required for registration will be provided in a later post.
For more information, visit the trademark section of the USPTO web site.
