Trademark

A trademark is any word, name, symbol, or device, or any combination thereof, that identifies the source of goods and distinguishes those goods from others in the marketplace.  Similarly, a service mark identifies the provider of services and distinguishes that provider from others.

As consumers, we rely on trademarks and service marks to guide us in selecting and purchasing everything from soft drinks to automobiles and all goods and services in between.  In addition to identifying the source of the goods or services, trademarks and service marks provide consumers with knowledge based on experience.  The purchase and subsequent use of a particular brand of soap, for example, provides the consumer with information regarding the quality and effectiveness of the product.  Accordingly, if the product performs as advertised, the consumer will likely look for that brand of soap – or that trademark – when shopping in the future.  The benefits of trademarks and service marks, however, extend far beyond those afforded to consumers.

Whether you are a budding entrepreneur, or the owner of a multi-million dollar corporation, the word or symbol affixed to your goods and services sets you apart.  Your trademark or service mark not only identifies you or your company as the source of the goods or services, it provides consumers with a guarantee of a certain level of quality or workmanship.  It is this guarantee that instills consumer confidence and generates a valuable intangible asset – good will.

Once your goods or services have obtained a degree of good will in the marketplace, competitors may try to capitalize on your hard-earned success. Consumers may suddenly be faced with similar goods or services bearing confusingly similar marks.  Such deceptive trade practices on the part of your competitors hurt not only your business, but consumers as well.

The common law has long provided protection to manufacturers and consumers based on the theories of unfair competition.  Although the common law continues to provide protection in state and local jurisdictions, federal statues have expanded this protection to a national scope.  The Lanham Act of 1946 (as amended) affords trademark and service mark owners the ability to register their mark or marks on a federal registry.  Pursuant to 15 U.S.C. Section 1057(b), federal registration of a mark on the principal register shall be prima facie evidence of the validity of the registered mark and the registration of the mark, of the registrant’s ownership of the mark, and of the registrant’s exclusive right to use the registered mark in commerce on or in connection with the goods or services specified in the certificate.  Federal registration also provides access to the federal court system and the administrative trial board of the U.S. Patent and Trademark Office.  In matters of willful trademark infringement by competitors, federal registration may entitle the trademark or service mark owner to treble (or triple) damages, as well as attorney’s fees and costs. 

Trademark infringement is not always willful or intentional, but can occur when a manufacturer or service provider unknowingly begins to provide goods or services under a mark that is confusingly similar to a mark currently in use in commerce.  Nevertheless, the infringer may be liable to the prior trademark or service mark owner for any damages suffered as a result of the infringer’s use of the confusingly similar mark.  To avoid such liability, it is imperative that a clearance search be conducted to determine if the mark you have chosen is available for use in connection with the desired goods and/or services.

Members of our firm are happy to answer your trademark-related concerns and assist you in obtaining federal registration of your trademarks.  Contact us to ensure that your trademarks and your business are fully protected.

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