Understanding trademarks and the rights they afford you, as well as understanding how to avoid trademark disputes, are essential to your success and the success of any of your brands or companies. This blog will give a brief overview of 6 essential things to know about trademarks and trademark laws to help aid your understanding of this subject.
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Trademarks are different from patents and copyrights: Trademarks, copyrights, and patents all protect intellectual property, but they all protect different types of intellectual property. A patent protects functional inventions, copyright protects original artistic or literary work, and trademarks are reserved for brand names and logos that are used for goods and services.
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Trademarks have many forms: Trademarks can be words, a phrase, a symbol, a design, or even a combination of these. The purpose of this trademark is that, despite the form, it identifies and distinguishes the item (service or good) from others, which protects the consumer from confusion regarding the source of the service of good.
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Trademarks should not be confused with domain and business names: A domain name is a part of a web address and should be registered with an accredited domain registrar. Since a domain name is a part of a web address and not necessarily a good or service, it is not considered trademarkable. A business name, similarly, does not necessarily qualify for trademark use. However, using a business name as the source of goods or service may qualify it for both the business name and for a trademark.
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You do not need to federally register a trademark: You are not required to federally register a trademark in the United States, and you can establish “common law” rights on a trademark without this registration through consistent use of the mark. Unlike federal registered marks, the common law trademark may not protect you throughout the entire United States. However, federally registering a trademark can add advantages to common law rights that one may find useful. Some of these advantages including assistance with policing marks against infringers, conducted searches of trademarks for the public, and a legal presumption of ownership over a mark and the exclusive right to use that mark nationwide.
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The most common reason USPTO refuses a trademark registration is a “likelihood of confusion:” This occurs if the United States Patent and Trademark Office (USPTO) determines that there is a “likelihood of confusion” between the trademark that is attempting to be registered, and the trademark of an already registered or prior-filed pending application owned by another party. The USPTO determines that a likelihood of confusion exists when both the marks are similar, and when the goods or services of the parties are related enough that consumers could mistakenly believe they come from the same source. However, two identical marks can coexist if the goods and services are not related.
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Strong marks can be easier to obtain and enforce than weak trademarks: A strong trademark, which is a distinctive mark, is more likely to be granted trademark than a weak trademark that is descriptive or generic. In other words, it is a mark that is strong in a legal sense. Weak or descriptive marks are difficult and costly to protect and may be harder to register/protect than stronger and distinctive marks.
To learn more about trademarks, you can consult Emory University’s Office of Technology Transfer. To learn more about the U.S. legal process of trademarks or U.S. Trademark Law, you can also consult the United States Patent and Trademark Office.