A trademark or service mark is a word, phrase, symbol or design, or a combination of words, phrases, symbols or designs, that identifies and distinguishes the source of goods (trademark) or services (service mark).
(Throughout the remainder of this post, the term “trademark” is intended to include service mark, as well, except where specified otherwise.)
The owner of a trademark has the right to prevent others from using the mark or a confusingly similar mark.
It is possible to obtain “common law” trademark rights simply by using a mark. However, trademark owners often choose to register their marks to obtain a higher level of protection.
A trademark that is used within a state can be registered with that state – see, e.g., the California Secretary of State website. A trademark that is used in interstate commerce can be registered with the U.S. Patent and Trademark Office. The benefits of a federal registration include the following:
- Constructive notice to the public of the registrant’s claim of ownership of the mark;
- A legal presumption of the registrant’s ownership of the mark and the registrant’s exclusive right to use the mark nationwide on or in connection with the goods and/or services listed in the registration;
- The ability to bring an action concerning the mark in federal court;
- The use of the U.S registration as a basis to obtain registration in foreign countries; and
- The ability to file the U.S. registration with the U.S. Customs Service to prevent importation of infringing foreign goods.
One may use the ™ symbol to designate any trademark and the SM symbol to designate any service mark. However, one may use the ® (R in a circle) symbol only after the USPTO registers a mark (not while an application is pending) and only for the goods or services listed in the registration (15 USC Section 1111).
This blog does not provide legal advice and does not create an attorney-client relationship. If you need legal advice, please contact an attorney directly.