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Trademark Law

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Trademark Law

A trademark is a word, symbol, name or other designation that identifies and distinguishes a good or service. Trademarks exist mainly for the protection of the consumer; the ability to identify the source of a good or service helps the consumer to confirm quality and authenticity. Trademarks also help businesses prevent competitors from usurping the goodwill associated with their products and services. Trademark law's origins lie in the common law on unfair competition, but statutory law has codified and expanded these protections. If you have questions on how to protect your intellectual property rights, contact an experienced trademark attorney from Sanders & Parks, P.C. in Phoenix, AZ.

Types of Marks

Four types of marks identify products, services and associations:

  • Trademarks identify the source, such as the manufacturer, of goods
  • Service marks identify the source, such as a restaurant, of services
  • Certification marks show that a product or service meets a specific standard
  • Collective marks are trademarks or service marks that designate membership in a group that produces goods or services, such as a consortium of wine producers, or a group that acts together, such as a union

Trademark Registration

Federal registration of trademarks or service marks is not necessary, but it provides valuable benefits and protections. It gives constructive notice of the applicant's rights in the trademark; the automatic ability to sue for trademark infringement in federal court; and increased damage awards, among other financial and evidentiary advantages.

To register a trademark, the applicant must have used the mark in interstate commerce or have a bona fide intent to do so. The trademark owner or attorney submits the application to the United States Patent and Trademark Office (USPTO), describing the use of the mark, attaching a representation of the mark and providing the appropriate fees. Foreign trademarks also may be registered.

The USPTO will examine the application. If the application is denied, the applicant may file a response within six months. If the application is preliminarily approved and it is not opposed by a member of the public, the USPTO will issue the applicant a certificate of registration. An attorney can provide assistance in the often-complex trademark registration process.

The Scope of Trademark Protection

Trademarks include graphic representations such as brand names, logos and other widely recognized distinguishing features. Even distinctive colors and scents can be protected under trademark law in certain situations. A mere description of a product, however, such as the commonly used term "organic," cannot be trademarked.

Unlike patent registration, trademark registration can be renewed as long as the trademark continues to be used in commerce. Five to six years after the certificate of registration is issued, the owner must file an Affidavit of Use; the owner must do the same within a year of the end of every ten-year period after the registration.

Remedies for trademark infringement include injunctive relief and compensation for loss of sales and other financial damages. Generally the plaintiff must show a likelihood of confusion between the plaintiff's mark and the defendant's; courts usually require a showing of actual confusion and willful infringement for the plaintiff to secure monetary damages.

Trademarks under International Law

The Madrid Protocol, adopted by numerous countries including the United States, allows an applicant in one country to designate other member countries in which the applicant wishes to register the trademark. If the applicant is a resident or citizen of the U.S. or has real and effective commercial ties to the U.S., the application may first be filed with and approved by the USPTO, which forwards it to the International Bureau of the World Intellectual Property Organization (WIPO). WIPO also must approve the application. Upon approval, the Bureau will issue an international registration.

Ownership and Abandonment

Like other forms of intellectual property, a trademark can be bought, sold or licensed under many circumstances. A trademark can also be abandoned if its owner stops using the mark, intending not to resume the use. Abandonment may be inferred from non-use. It is therefore of the utmost importance to ensure that you are maintaining your intellectual property rights. If you have questions regarding trademarks, a lawyer with Sanders & Parks, P.C. in Phoenix, AZ, can provide assistance.

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DISCLAIMER: This site and any information contained herein are intended for informational purposes only and should not be construed as legal advice. Seek competent legal counsel for advice on any legal matter.

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