What is a Trademark? How do I Trademark Something?

What is a trademark?

Today’s post covers trademarks. Obviously.

Trademarks start with that little TM symbol that all of your clients seem to place on every bright idea they have whether they actually have bothered to file a trademark or not. We often find it is the later – but tend to not open our mouths too much concerning client’s legal matters.

When a Trademark is all grown up (filed & approved) – it gets to sport that little “R” symbol – meaning that the mark is registered with the USPTO.

The ® symbol means that a particular mark is actually registered with the U.S. Patent and Trademark Office (USPTO). Marks followed by a TM or SM symbol – then althought the indiviudal or company may be using the mark – it is probably not yet registered with the U.S. Patent and Trademark Office.

.. or.. as we like to say – they are probably “faking it”.

So, in short, a trademark is merely: Any “mark” consisting of words, graphics, icons, shading, coloring, stipling, symbols or other items that identify goods or services from a company or individual. Further, a mark distinguishes the company or individual from other companies or individuals.

Trademark law deals with the registration, recognition and enforcement of these intelluctal property rights. If you have a registered trademark – then no one else can use that mark in conjunction with any good or service so it doesn’t appear to use your goodwill or make it look like you endorse, support or otherwise have anything to do with the mark. When a company or individual is displaying your mark or a confusingly simular mark in conjunction with a particlular good or service – they are attempting to trade on your “goodwill” for their own benefit.

This is why trademark law exists. To stop such non-sense.

What is a Mark?

Marks can be either a “Word Mark” – in which you are trademarking a particular word, phrase or combination of words and styles. Note – this is the more difficulat trademark to get. You just cannot submnit a word you are using or even one you made up – or else it may be ruled [insert]/

Getting a trademark on the actual mark or logo or stylistic experssion of the idea is easier.

Having registered a dozen or more trademarks for ourselves and clients, here’s our thoughts on the process.

– Your trademark will take around 8 months if you get it 100% right the first time and haven;t caught a trademark exanimer on a bad day.

– You will probably get an “Office Action” you have to respond to; essentially these are correctionsto you application, classification of goods and services and so forth.

– We find it kind of strange – that the logo or wordmark of the USPTO is not, in fact trademarked – interesting. {Not even the entire spelled out word or the mark itself.} I actually asked several IP Lawyers and them mumbled something about it is “probably” simply descriptive and unable to qualify. At $450/hour – I REALLY hate hearing the word “probably” from laywers.
What is a Service Mark?

Think “slogan”. Technically, it is a mark used to identify and set apart a Company’s services from other comapnies or individuals. “Start your next project half-finished.” is our service mark for TemplateKit.com.

What is Trade Dress?

Trade Dress is another aspect of trademark protection where a particular aspect of a good or service is recognizable in the marketplace. Think of it as the “total package”.

Examples may include:

– That unique red shade Coke uses.
– The shape of Microsoft’s X-Box.
– The layout and arrangement of a particular restaraunt
– The color scheme Starbucks Coffee uses
– The shape of a sports drink bottle

What can I possible trademark?

Marks (Designs w/ Words)
Trade Dress
Audio Identifiers or Sounds (often called an audible mark)
Scents & Smells (Oh, yes…you can do this.)

What are Trademark rights?

An owner of a trademark/service mark has the right to use that trademark/service mark and to prevent others from benefiting from the trademark/service mark’s good reputation and recognition in the marketplace.

How do I get started?

Go to http://www.uspto.gov and first search to see if your mark is already registered or owned. Just because you think you came up with the idea doesn’t mean someone didn’t beat you to it first.

After that you have two choices.

1) File the Trademark application yourself.

2) Use a lawyer, service or other vendor to do it for you.

Filing trademarks is not terrible hard once you get the hang of it. However, it can be an expenseive learning curve and time consuming if you get even the slighest thing wrong on your application. The average amount of time it takes to get a registered trademark seems to be 1.5 years. We’ve gotten them in 6 months start to finish – however – that was after a few dozen of more applications for our various marks.

That’s it for tonight, good luck and .. apparently .. good night.

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