"Thank you. You treated our small company like one of the biggest in the world and gave our trademark the attention it deserved." - Jhon Garcia, President, Mi Sandwich Cubano, Inc.
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Basic
TM Facts
What
Is A Trademark? - top
A trademark is any
word, name, symbol or device used, or intended to be used, in interstate
commerce to distinguish the products and services of one company or
individual from those of another. In addition to names and logos, trademarks
can include any device that distinguishes the source of goods or services.
This can include color (e.g., pink for insulation) or even sounds (e.g.,
NBC's chimes).
What
Are The Benefits Of Registering a Trademark? - top
- Your business name
and logo and the goodwill associated with them are valuable assets.
Federal registration provides comprehensive protection and enables you
to prevent others from using your trademark.
- A federally registered
trademark indicates that your business name is secure.
A federally registered trademark can be a valuable asset if you decide
to sell your business.
- By registering
your trademark you can establish superior rights in your mark and acquire
incontestability after five years of continuous use and registration
of the trademark.
- The registration
symbol ® may only be used once your mark is registered. Use of the
® symbol before your mark is registered is illegal.
- The owner of a
registered mark is entitled to a presumption of mark ownership and exclusive
use since the application filing date.
- An owner of a federally
registered mark is entitled to triple damages and attorney fees in certain
cases.
- You can prevent
others from using a confusingly similar name.
What
Can Be Trademarked? - top
- A business name,
phrase or logo may be federally registered as a trademark if it is,
fanciful, arbitrary or suggestive.
- Fanciful - Fanciful
marks are generally marks without a dictionary meaning. Examples include,
Exxon and Xerox.
- Arbitrary - Arbitrary
marks have nothing to do with the goods or services with which they
are associated. Examples include, Diesel for clothing and Apple for
computers.
- Suggestive - Suggestive
marks indirectly refer to the goods or services with which they are
associated. Examples include Greyhound for bus services indicating swiftness.
- Fanciful, arbitrary
and suggestive marks are good choices when choosing a potential trademark
or service mark.
Marks
To Avoid When Choosing a Trademark or Service Mark. - top
- Descriptive - Descriptive
marks are marks that describe the goods or services with which they
are associated. Generally, descriptive marks are not registerable. Descriptive
marks may, however, become registerable upon a showing of what's called
secondary meaning.
- Generic - Generic
words are common words that describe an entire class of goods or services.
These words do not serve as an indication of the source of goods or
services and should be avoided when choosing a potential mark.
- Geographically
Misdescriptive or Deceptively Misdescriptive Marks - These types of
marks are not registerable without a showing of secondary meaning.
- Scandalous or Immoral
Marks - These are marks that offend the conscience.
- Surnames - Surnames
are not registerable without a showing of secondary meaning.
- Deceptive Marks
- Deceptive marks are not registerable.
How
Long Does a Trademark Last? - top
A federally registered
trademark lasts 10 years, provided that it is properly maintained. If
properly maintained, trademark rights can last indefinitely.
What
Is Trademark Maintenance? - top
To keep your trademark
from being cancelled, it is necessary to file a Section 8 Declaration
of Use between the fifth and sixth year of registration. Subsequent
filings must be made on each 10 year anniversary of registration. Additionally,
after five years of continuous use of your mark, you are entitled to
file a Declaration of Incontestability. Failure to maintain your trademark
can result in the loss of your trademark or unnecessarily limiting your
rights. If you do not already have an attorney, we are available to
assist you with your trademark maintenance.
Why
Is Incontestability Important? - top
Once you file your
Section 15 Declaration of Incontestability, the registration, with some
exceptions, is (1) conclusive evidence of the registrant's ownership
and exclusive right to use the mark, (2) immune from attack on the basis
of prior use, and (3) immune from attack on the basis of descriptiveness.
Do
I Need To Be Using My Trademark To Register It? - top
No, but you must
have a bona fide intent to use the mark in interstate commerce. If you
have not yet used your mark, you may file an intent to use application.
Additionally, the intent to use applicant must later file a Statement
of Use when the mark is used in interstate commerce. There are additional
filing fees associated with filing a Statement of Use. These additional
fees (currently a $100 government filing fee and a $185 preparation
fee) are not included in our $250 application fee.
What
Is Interstate Commerce? - top
Federal trademark
registration is available when you use your trademark in interstate
commerce or have a bona fide intent to use your trademark in interstate
commerce. For trademarks, this means transporting goods across state
lines with your trademark displayed on the goods themselves or the packaging.
For service marks, interstate commerce means providing a service across
state lines or providing a service that affects interstate commerce
(e.g., operating a gas station, hotel or restaurant).
Use
of the TM ® and SM Symbols - top
Anyone claiming
rights in a mark may use the TM or SM symbols, even prior to registration.
The claim may or may not be valid. The ® symbol may only be used
after the mark is federally registered.
What
Are Common Law Trademark Rights? - top
Common law rights
attach upon the use of your name or logo. However, these rights are
limited to the geographical area in which the name or logo is used.
In comparison, federal trademark registration entitles you to use the
mark nationwide.
How
Long Does It Take For The PTO to Process My Application? -
top
Digital-Trademarks.com
will prepare and file your application within two weeks of receipt of
your payment and receipt of all documents necessary to prepare the application.
Once filed, the PTO takes anywhere from 10 to 18 months to process your
application for registration. However, the most important date is the
filing date, if registered, protection dates back to your filing date.
During the application process, you will be provided with routine updates
on the status of your trademark and are encouraged to contact us.
The
Trademark Application Process - top
Once your application
is filed with the PTO, the PTO will issue a filing receipt. The trademark
examining attorney will examine the application and may issue what's
called an office action requesting changes to the application. If these
changes are insignificant we will authorize them and inform you of them.
If the changes are significant, we will consult with you to determine
a course of action. Once the application has passed the examination
phase, the mark will be published in the Official Gazette. Publication
in the Official Gazette gives interested parties an opportunity to file
a Notice of Opposition or request for extension to file a Notice of
Opposition. If there is no opposition or the opposition is unsuccessful,
the PTO will issue a Certificate of Registration. For an intent to use
application, the PTO will issue a Notice of Allowance. Within 6 months
of the Notice of Allowance, a statement of use must be filed. Once the
Notice of Allowance is accepted, the Certificate of Registration will
issue.
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