What Is a Trademark?
A trademark is a word, name, logo, slogan, symbol, or phrase that you use to identify your products and services.
Service marks can also be used to symbolize the services of a company. Trademarks are an integral part of any business.
As the identifying factors for customers and potential buyers, trademarks and service marks protect the brand you develop.
A company need not register a trademark in order to develop trademark rights. But registering your trademark offers many advantages.
For example, registration of a trademark with the United States Patent and Trademark Office (USPTO) puts others on notice that you claim ownership of the trademark and provides the trademark owner with certain rights.
Registration provides a presumption of ownership nationwide of that trademark.
Registration also provides the owner the exclusive right to use the mark in association with the goods and services included in the registration.
Federal trademark protection provides ten years of protection. You may renew your trademark for ten year periods.
Registration is not required because common law affords you trademark protection. However, common law rights are unlikely to provide nationwide protection. Protection against others using the trademark may be limited to only the geographic region where you do business.
State registration of trademarks also affords protection to the original user.
However, this protection extends only within the state where you register the trademark.
The items that make up your brand should be protected through trademarks.
Trademark laws protect your intellectual property and safeguard against others adopting logos, slogans, symbols, etc. that are confusingly similar to your existing intellectual property.
How do I select my mark?
We can assist you in selecting your mark.
To assist you, we will explain the categories of marks arbitrary, fanciful, suggestive, and merely descriptive.
How do I register my mark?
The most important thing you can do to protect your mark is to register it with the United States Patent & Trademarks Office (USPTO). The initial term of a federal registration is 10 years, with 10-year renewal terms.
Our lawyers have experience in registering your marks with the USTPO. Call today for a free consultation or to learn more.
Building a strong brand for your good or service should be a priority.
This brand helps customers distinguish your good or service from competitors. A trademark can be the most valuable asset that a business owns.
Contact a trademark attorney today to explore your trademark rights.
What to Do If Someone Is Infringing on Your Trademark
The owner of a trademark has the right to exclude others from using a mark that creates a likelihood of confusion.
An experienced trademark attorney can evaluate your trademark matter.
Cease and Desist Letter
Oftentimes, if it is believed that trademark infringement is occuring, the trademark owner will send the infringer a cease and desist letter.
A trademark lawyer can assist in drafting the letter or in responding to such a letter.
A cease and desist letter demands that the person stop infringing on your trademark rights.
The letter provides a deadline to cease the use of your trademark.
The person may not know of the existence of your trademark.
If this is the case, a cease and desist letter may be enough to end the infringement.
File a Lawsuit
If a cease and desist letter does not lead to a resolution of the dispute, a lawsuit may be filed.
A trademark infringement lawsuit is filed in federal court if you have registered your trademark with the USPTO.
There are two main ways to show that trademark infringement has occurred.
Likelihood of Confusion
In trademark infringement lawsuits, the court will evaluate whether there is a likelihood of confusion between your trademark and the infringing mark.
There are eight factors to consider in determining whether there is a likelihood of confusion:
- Strength of your mark;
- The similarity of goods and services offered by you and the infringer;
- The similarity of the marks;
- Evidence of actual confusion between the two marks;
- Marketing channels of both parties;
- Degree of purchaser care and sophistication;
- The intent of the infringer in selecting the mark; and
- The likelihood of either party expanding their product line using the mark.
Not all factors will be relevant in every case; however, the ultimate question in all trademark infringement lawsuits is whether the average consumer would have a difficult time distinguishing between the two marks.
Dilution of Trademark
Trademark owners may also assert dilution of the trademark. In this claim, the infringer’s use of the trademark weakens your trademark’s reputation.
Unlike likelihood of confusion claims, dilution claims do not require that the good or service be similar.
Trademark infringement has the potential for substantial economic losses. Seek the counsel of a trademark attorney to defend your trademark rights.
What To Do If You Have Been Accused of Trademark Infringement
If you’ve received a cease and desist letter accusing you of trademark infringement, it can be frightening. Its ‘advisable to consult with a trademark attorney before you respond to the letter.
If accused of trademark infringement, there are multiple defenses you can raise.
Perhaps you were the first to use the trademark in question.
Remember, even if you never registered your trademark with the USPTO or with a state agency, you still have common law rights.
The assistance of a trademark attorney can help navigate through these issues.
No Likelihood of Confusion
You may also be able to show that there is no likelihood of confusion between the two marks.
In this situation, a trademark attorney can assist in contesting the alleged infringement.
Why Do I Need a Trademark Lawyer?
Attorney John (Ted) Polasek’s firm, The Polasek Law Firm, focuses on intellectual property law.
With a rich knowledge of intellectual property, trademarks, patents, patent litigation, and contingent fee patent litigation, Ted sets himself apart from attorneys at large firms by providing personalized counsel to his clients.
When faced with a complex trademark infringement lawsuit, the experienced attention at The Polasek Law Firm provides to your unique situation sets you on a positive path forward.
Contact The Polasek Law Firm today for a no-charge initial consultation!