A trademark is used to identify the source of a specific product. A trademark may consist of a word, phrase, design, symbol, color combination, or packaging. Businesses may register their mark with the U.S. Patent and Trademark Office (USPTO), but this is not required. A business may simply use the symbol “TM” with its mark to give notice that it is using a mark as a trademark.
Why Would a Business Want to Register its Mark?
Registering a mark offers businesses several advantages. Registration:
- serves as legal notice to competitors and others that there is a claim of ownership of the mark;
- creates a legal presumption that the registrant owns the mark and has the exclusive right to use it nationwide with the relevant goods or services;
- can make it easier to obtain an injunction against an infringer in federal court
- can be used to register the same mark in foreign countries; and
- gives a business the option of filing with the United States Customs Service to protect itself from imported goods that may damage the business’s reputation and the value of its trademark.
The Registration Application
A trademark application must be made with the USPTO to obtain a registered mark. The USPTO reviews a trademark application to determine if it meets the federal registration requirements. Once the USPTO approves a trademark, the business is free to use the ® symbol in conjunction with its trademark.
Trademark Infringement and Enforcement
The USPTO does not enforce trademarks. The responsibility for trademark enforcement lies with the owner. The potential for trademark infringement exists where a business uses a mark that is likely to confuse a consumer as to the source of the product. For example, if a soda manufacturer used the words “Cocoa Cola” on its soda, consumers could be led to believe that the soda was a Coca-Cola product, when it is not.
In a trademark infringement suit, the trademark owner may seek monetary damages, an injunction prohibiting further infringement, trebled damages, and court costs.
A trademark does not expire. However, if the owner abandons the mark, its registration is cancelled, or the owner fails to use the mark continuously and exclusively, the mark may no longer be considered a protected trademark.