A trademark is a distinctive word, phrase, logo, graphic symbol, or other device that is used to identify the source of a product or service and which serves to distinguish it from competitors.Honda, Doritos, and McDonald's are famous trademarks.A trademark can be more than just a name or logo, it can also include distinctive shapes, smells, and colors.The famous check pattern from Burberry is a trademark.You get the rights to your trademark when you use it.To get more legal protection for your trademark, you need to register it and keep a close eye on unauthorized uses.
Step 1: Do you know if your mark can be registered?
If it is sufficiently distinctive, a trademark may be registered.The mark is either inherently distinctive or has become distinctive through sufficient use.If the trademark is seen as offensive, it may not be registered.This is a growing body of law.Ask an attorney if you have questions about your mark.The trademark rights are created through use.A mark that is never used in commerce will not be able to be registered.A generic mark is a description of a class of goods or services.Since the phrase is used by everyone to describe a service offered by many different companies,Window Cleaners cannot serve as a mark.The likelihood of confusion in the mind of the consumer is created by confusingly similar marks.Before applying for registration, you will have to look for similar marks.Weak marks include last names, geographic marks and descriptive marks.You need to show that consumers associate the mark with your goods or services.A shape that is functional can't qualify.The shape of a Hershey's chocolate bar was denied registration as a trademark because the panels that make up the bar were deemed functional.
Step 2: Search for similar marks.
If there is a similar mark already registered, you can't register your trademark.To find similar marks, use the Trademark Electronic Search System (TESS) on the United States Patent and Trademark Office website.The Trademark Electronic Search System database is free to search online.If the mark includes a design element, you need to consult the Design Code Search Manual.Members of the public may use the library for free.There is a regional Patent and Trademark Depository Library.These libraries have databases of registered and pending marks, but they don't have design mark images.Not all trademarks are located on the TESS system.If you plan to sell your product overseas, you should do a search of foreign trademarks as well.You can see if your state has a trademark by clicking here.
Step 3: There are possible conflicts with existing trademarks.
To check the status of an existing trademark, use the Trademark Applications and Registrations Retrieval (TARR) database.You need to know the mark's registration number to search it.
Step 4: The mark needs to be changed.
If you find a mark that is similar to yours, you will need to revise it.A confusingly similar mark will not be registered.Consumers are more likely to be confused by a confusingly similar mark.To determine if your mark is confusingly similar, consider the similarity of the marks as well as the goods or services offered.Look at the marks and see if they sound the same.Ask the person if they think the marks are the same if you show them marks a couple of minutes apart.If the marks are used on similar products, they should be sold in the same store.If you are competing for the same customers, you should decide.
Step 5: The mark needs to be more distinctive.
An inherently distinctive mark is one that is unlikely to be thought up by another business owner.Marks that are inherently distinctive are more likely to get trademark protection.It's very unlikely that someone else would think up the same mark, because the strongest marks are fanciful and arbitrary.For example, a chair company could use the name "Blueberry" for a product.Suggestive marks are not as strong.They suggest the essence of a product or company, making them your second best bet."Shiny Green" is the slogan for a company that sells ivy plants.Descriptive marks are considered weak because they are easy to mistake for someone else's trademark.For example, using a picture of an oatmeal cookie for a cookie company or a video game company.Through use and advertising, descriptive marks can become strong.A generic mark is not a trademark.Generic words can be used to describe a product, so there is no way to enforce a protection.It is possible to use the name "Lip balm" for a lip balm company.
Step 6: There are videos on the Trademark Electronic Application System.
The online Trademark Electronic Application System (TEAS) is the preferred method of preparing the federal trademark application.The person is guided by the TEAS system.The TEAS system has a series of self-help videos.Everyone who is filing for a trademark should watch the videos to understand the process.Here, here, and here are the places where you can find the self-help videos.
Step 7: You can choose an application.
There are three versions of the trademark application process.They are different according to cost and complexity.Click here to find out which application is right for you.The strictest requirements for filing can be found in the online version of the TEAS application.To file on the TEAS Plus system, you must submit a completed initial application and agree to conduct all correspondence electronically.$225 is the fee for a class.The TEAS RF process allows for a moderately reduced application fee and requires that all correspondence be handled online.You don't need to complete the initial application.The fee for a class to register on the TEAS RF system is $275.The process does not require any electronic communication or compliance with the stringent requirements of the TEAS RF applications.The fee for a TEAS regular application is $325.
Step 8: The basis for the application needs to be identified.
There are four primary bases for first-time filers in the U.S.: (1) you have already used the mark in connection with the sale of goods in commerce, (2) you intend to use it in Commerce, and (3) you already have a trademark.The first two are the most common.If you have already used the mark in connection with the sale of goods, you should check "yes" under "use in commerce."Your best guess is correct.The date on which you first sold your products outside of your state is important.Check "yes" under "intent to use" if you haven't used the mark yet.
Step 9: Do you know the class of goods or services?
Identifying the class of goods or services you provide will be important.The International Schedule of Classes of Goods and Services is used by the United States Patent and Trademark Office.To find out what class of goods you have, click here.The class number is indicated by the letter G for goods or S for services.
Step 10: The goods or services should be described.
The class of the goods is not the same as a description.The description should be precise.If the application is too broad, the examining attorney will require you to narrow it.
Step 11: The mark needs to be identified.
You need to identify your trademark.Different ways to identify your trademark are available.If the mark is a word or a group of words, simply list the words as you would like them to be trademarked.If the mark is a symbol, a logo, or a design, it must be attached to the application as a JPEG file.A sound mark is a trademark of a particular sound.Attach an mp3 of the sound to your application to identify it.You can't combine the two formats in the same trademark.A distinctive spelling of a company name and a logo with a distinctive rendering are two separate trademarks.
Step 12: Information about the person.
The person applying for the mark has this information.If you apply for the mark yourself, you would be the one applying.You can watch the video for more information.Even if you are the only one involved with the business, you might apply on behalf of it.You will list your official business name as the application if your business owns the mark.You must have a mailing address in order to be a citizen.If you don't want to use a personal mailing address for the application, you can use the post office box or business address.If you are using the TEAS RF application, you must provide an email address where you can receive correspondence from the USPTO.
Step 13: Provide a statement.
You have to give a sworn statement that the facts within the trademark application are true.The declaration should be signed by you.If you want to use one that is prewritten, the TEAS application provides a declaration.
Step 14: Any necessary warnings should be added.
There are words within the phrase that can't be trademarked alone.If there was nothing else to the mark, a hair salon could not trademark the words.You need to give a "disclaimer" statement if your mark contains such words.You are not attempting to trademark these general words, only the entire phrase when used together.
Step 15: A specimen can be provided.
An example of how you actually use the mark is required for your application to be based on a mark already in use.You will provide a specimen at a later date if you haven't used your mark yet.Attach a digital photograph of the mark being used to provide the specimen online.
Step 16: Go ahead and complete the application.
After you submit your application, you should receive an email confirmation.You should save this confirmation for your records.
Step 17: Wait for examination results.
Do not expect to hear anything about your application for a while.The decision regarding your application is usually made within 3 to 6 months.You will get a notice once your mark is approved.If you have any questions, be sure to answer them.If the USPTO has questions about your application, they will contact you by sending an "action letter" explaining the problem or ambiguity in the application.If you receive an action letter, it's a good idea to call the examiner to find out what the problem is.Call the examiner if you disagree with him about the application.
Step 18: There is a publication.
You will receive a notice of publication once your mark has been approved.Your mark will be online for 30 days.Anyone can oppose your trademark filing during these 30 days.This rarely happens.Unless you decide to abandon your application or reach a settlement with the opposers, you will need competent legal counsel when an opposition occurs.
Step 19: Receive your certificate of registration.
If there is no opposition to your trademark after 30 days, you will receive a certificate.It may take a year or more to process the application because of the high volume that the USTPO deals with.If you didn't provide proof of use when you applied, your mark will not be placed on the trademark register until you file supporting documents, which include a specimen and a fee.
Step 20: When you use your trademark, identify it.
You can use the registration symbol, which is an "R" within a circle, once you have registered your trademark.You can use the trade mark or service mark before you register.
Step 21: Any unauthorized use should be noted.
If you see that a business or person is using your trademark in a way that looks similar to yours, contact them and ask them to stop.The dates and locations of the violation should be documented.Keep a sample of the product if someone uses your trademark.You can use the internet to find marks that are similar to yours.Customers who are confused between your product and someone else's should be paid particular attention to.If the similarity of the trademarks causes confusion, you can use it as evidence in a lawsuit.
Step 22: The mark can be used as an adjective.
It is possible to keep your trademark active by continually using it.The trademark can be used as an adjective.One benefit of ALOHA brand cat food is that it is more healthy than any other brand.The trademark should not be used as a synonym for the product, as this will encourage people to think of the trademark in a different way.The trademark becomes generic when this happens."Kleenex" is being used as a synonym for a tissue.You won't be able to protect it when a mark becomes generic.
Step 23: There is a watch service that can be registered with a trademark.
If you want to monitor unauthorized use of your trademark, you can hire a watch service.The services cost a couple hundred dollars a year.Newly-filed and recently-approved trademark applications can be searched by trademark watch services.Register a domain name.Track changes in ownership.Don't use the Internet for unauthorized purposes.Track new trademarks filed by competitors.
Step 24: Take care of your rights.
Trademark rights can only be maintained through actual use.You will lose your legal rights if you stop using the mark.You have to periodically file an Affidavit of Continued Use or Excusable Non use as well as an Application for Renewal.
Step 25: Meet with an attorney.
When you registered your mark, you may have met with an attorney.You might want to revive that relationship now.An attorney can help protect your mark.The referral service of your state or local bar association can be used to find an experienced trademark attorney.You can find your state's referral service by visiting this website.If money is tight, look for attorneys who work on a flat fee or contingency basis.A flat fee is appropriate for simple tasks.You pay a set amount for the task, no matter how long it takes the attorney.If you are going to file a lawsuit, an attorney may be willing to work on contingency.Unless you win your lawsuit, the attorney won't recover fees.
Step 26: There is a trademark application.
If someone is attempting to register a trademark that is potentially conflicting with your own, you can challenge it.You will be notified early enough so that you can bring a challenge if you hire a trademark watch service.You have a month from the day a trademark is published in the Official Gazette to file an opposition with the Trademark Trial and Appeal Board.It becomes harder to challenge the mark at a later date if you miss this deadline.You must file a notice of opposition with the TTAB to initiate an opposition.An opposition requires the assistance of competent legal counsel.
Step 27: Don't send a cease and desist letter.
You should send a cease and desist letter if you see someone violating your use.The letter tells someone that he is violating your trademark and demands he stop.Certified mail should be sent with the letter.A cease and desist letter should cover the following: "It has been brought to our attention that your company is using the trademark "insert mark" in connection with the sale or marketing of your goods or services."This is a trademark of our business.We request that you cease and refrain from using our registered mark in connection with the sale or marketing of your goods or services.You may not be aware of the conflict.We request that you respond by letter assuring us of your immediate action to cease and desist the use of this, or any substantially similar, trademark.
Step 28: There is evidence to be gathered.
You should keep copies of your cease and desist letter, as well as any evidence that you can use to prove your case.The dates when the mark is still being used should be written down.Keep records of reported confusion.
Step 29: You can file a lawsuit.
You will have to file a lawsuit in federal court if the violation doesn't stop.A complaint will be drafted by your lawyer, which will identify the defendants.You should speak with your attorney if you are going to bring a lawsuit.Federal suits must be brought within a certain amount of time.Since the federal law does not have a limitation period, the deadline varies by state.Discuss possible next steps with your attorney.See how to file a federal lawsuit.