Trademarks and Servicemarks are generally words, names, symbols, or any combination thereof, which are used to identify and distinguish the source of a product or service to the consumer within the marketplace. The purpose of trademark law is to prevent customer confusion regarding the source of goods and services in the marketplace, and the affiliation of companies that make the goods and services within the marketplace.
Trademarks are applied to products (“goods”). Trademarks are placed either on the goods themselves, or the goods’ labeling or packaging, or in the manual that accompanies the goods. A service mark indicates the source of a service and is used in the marketing, advertising promotion or sale of the service. For purposes of convenience, this and the other Fact Sheets provided by the Law Office of Lara Pearson, Ltd., use the term “trademark” to refer to both trademarks and service marks.
A trademark generally takes one of three forms: it is comprised of words alone (“word mark”); a design alone (“design mark”); or words and a design (“composite mark”). Trademark rights begin when the trademark owner first uses the mark in commerce. Use of a mark in interstate commerce is required to obtain federal trademark rights, including the right to federally register a trademark. Use that is limited to one state entitles the trademark owner to trademark rights only within the state in which the use is made.
A business receives “common law” protection of its mark through the mere use of its trademark. ” Common law” rights are generally governed by case law, rather than statutory law. However, to receive the maximum amount of protection for a mark, a business should seek federal registration of its mark. In addition to the benefits described in the fact sheet on the Principal and Supplemental Registers, federal registration is the best method of notifying the world of the rights that your business claims in its mark(s). This is so because the U.S. Patent and Trademark Office’s federal registers are available for review free of charge over the internet, and they are the location where 99% of all U.S. trademark searches start.
The lifetime of a trademark depends on the length of the use of the mark. Common law rights exist so long as the mark is used properly. Federal registration must be renewed six years after initial registration and then again every ten years. Failure to use a mark for three or more consecutive years creates a statutory presumption that the mark (and the rights therein) have been “abandoned.” Further, failure to include the necessary quality control provisions in a trademark license (as well as the failure to enforce quality control provisions) can also constitute abandonment of the mark, as well as the right to prevent others from using it.