There are, however, areas where both trademark and copyright law may be used to protect different aspects of the same product. As a general rule, trademark law gives legal protection to names, logos, and other marketing devices that are distinctive. Trademarks that merely describe some feature or quality of the goods or that are based on someone's name or a geographic term are usually considered to be "weak," and thus unprotectible under trademark law. However, once the trademark owner can demonstrate substantial sales, advertising, or other public awareness of a weak trademark (known as "secondary meaning"), the trademark will be considered distinctive and can be registered with the United States Patent and Trademark Office (USPTO).
If you apply for registration of a weak (or descriptive) trademark, the Examiner will reject the application and give you the opportunity to move your application to the Supplemental Register instead of the Principal Register. As previously noted, the USPTO will not register marks that are used only in one state; a trademark must be used to offer goods or services for sale in more than one state to qualify for federal trademark protection. The original registration may be renewed indefinitely for additional ten-year periods if the owner files the required renewal applications (called a Section 9 Affidavit) with the USPTO.
To find out whether you're legally permitted to use the name you've chosen for your products and services, you should conduct a trademark search.
The price of Nolo's Online Trademark Application is $139.00 and includes three essential trademark agreements and a guide to acquiring and maintaining trademark rights. Within two business days, we will file your trademark application with the USPTO and send you a package via FedEx 2-Day service.
Once we submit your application to the USPTO, we cannot refund the filing fee or any other third-party costs should you decide to cancel your order. Nolo will store your personal information for one year after you pay for your trademark application.
During the application process you may have elected to file an ITU application -- an application used by a trademark owner who has not yet used the mark in commerce but who intends to do so in the near future. After your application is filed, an examiner at the USPTO examines it to determine if your mark qualifies for registration. In order to maintain the status of a federally registered trademark, the owner must file a statement of continued use and later, a renewal application. Chances are slim that your application will be approved without any communications from the USPTO. An examiner may initially either request that you amend your application, reject your application or both.
If you fail to overcome the examiner's initial rejections, the examiner will issue a final rejection -- in other words, the examiner now considers that your trademark is not registrable. The best way to find a good trademark lawyer is to get a referral from other people who have used that lawyer's services. In this section you will provide the US Trademark Office with your correspondence information for communicating about the trademark application while it is pending at the USPTO.
The “Correspondence Information” in an application differs in some subtle ways from both the Owner information and Attorney information entered earlier in the application form.
If you are someone who is not familiar with the internet as a communication tool, then filing a trademark application is probably a time to consider taking a course or something to get more informed on using email and other internet mediums for communication. WARNING: For an application filed under TEAS Plus, the failure to maintain a correct e-mail address for ongoing e-mail communication will result in the loss of TEAS Plus status and a requirement to pay $50 per class. After you have filled out your correspondence information, including your email address, then you are ready to proceed to the review and payment process for filing your trademark application.
If you are new here, head on over to the beginning of this serious on how to file a trademark application or check out the Trademark Application Headquarters home page for the latest information on trademarks.
This post is the third part of a multi-part series about how to file a trademark application electronically at the U.S. Now it’s time to get into the serious business of correctly filling out the applicant information of your trademark application. Next, go to Part Four, Entering Your Mark, in this series on how to file a trademark application electronically at the U.S. The Online Trademark Application is easy, thorough -- and you don't have to pay until you're done. For example, copyright laws may protect the artistic aspects of a graphic or logo used by a business to identify its goods or services, while trademark laws may protect the graphic or logo from use by others in a confusing manner in the marketplace. When it comes to a product's design, however -- say, jewelry or a distinctively shaped musical instrument -- it may be possible to obtain a patent on a design aspect of the device while invoking trademark law to protect the design as a product identifier. Registration of a mark on the Principal Register conveys the important substantive rights that most people associate with federal registration and, as a result, it is the preferred method of federal trademark protection.
Patent and Trademark Office (USPTO), the trademark's owner first must use it in "interstate commerce." This means the mark must be used on a product or service that crosses state, national, or territorial lines, or that affects commerce crossing such lines -- for example, an Internet business or a restaurant or motel that caters to interstate or international customers. Finally, unless the trademark owner can demonstrate secondary meaning, the USPTO will only register descriptive trademarks on the Secondary Register. Patent and Trademark Office's (USPTO's) Principal Register, the owner receives a certificate of registration good for an initial term of ten years. To learn details about how to conduct your search read Nolo's Conducting a Trademark Search FAQ. You will go through a short interview, answering questions about yourself and your trademark, and uploading any related art. Every time you work on your application, your answers are automatically saved in the system. If you filed an ITU application, the examiner will review the application just like a non-ITU application -- that is, examine it to determine if it meets the qualifications for registration. If the examiner determines that your mark qualifies, the USPTO publishes the trademark in the Official Gazette (an online publication of the USPTO). Whether you should respond to a rejection yourself or hire an attorney depends on the nature of the problem and your comfort level in dealing with a trademark examiner. It will be very important to keep your correspondence information up to date, even after you receive a registered trademark. You can specify a different name, address and phone number for the Trademark Office to communicate with.
For instance, you cannot change the correspondence address to the owner of the trademark if an attorney has been appointed.
Otherwise, you are probably better off hiring a patent and trademark attorney, if for no other reason than having easy and effective communication with the USPTO. Soon your application will be filed, and you will be headed down the road toward having a registered trademark for your brand. If you are not sure, then you may refer to the online help, or you may want to consult with your attorney or accountant.
I recommend entering the phone number, fax number and email address also, especially if you are filing the application pro se. We pay close attention to changes in the law and we'll make sure your online legal documents stay legally up to date. A service mark does the same thing as a trademark, but while trademarks promote products, service marks promote services and events.
Trademarks protect distinctive words, phrases, logos, symbols, slogans, and any other devices used to identify and distinguish products or services in the marketplace.
Similarly, trademark laws are often used in conjunction with copyright laws to protect advertising copy. Not only can Tom keep others from making, selling, or using the precise type of hammer he invented, but he may also be able to apply his patent monopoly rights to prevent people from making commercial use of any similar type of hammer during the time the patent is in effect (20 years from the date the patent application is filed). Strong trademarks come in two forms: They may be "born strong" because they are creative or out of the ordinary, such as Yahoo!, Exxon, or Kodak (also known as "inherently distinctive" marks). Nolo uploads your application information and files it with the USPTO, but it does not correspond with the USPTO on your behalf.
However, your mark will not be placed on the Principal Register until you file an additional document with the USPTO when you put the trademark into actual use. The Gazette states that the trademark is a candidate for registration; this provides existing trademark owners with an opportunity to object to the registration. In the event you receive communication from the USPTO about your application you must be diligent in responding. That said, if you prefer having the input of an experienced attorney, we recommend that you use a trademark attorney who is licensed to practice before the USPTO.
Nolo will include your mailing address on your application and the USPTO will use that address to contact you if it needs to correspond with you about your application. After determining the correct correspondent, fill in the name, address and telephone information in the trademark application form.
Although the owner of an unregistered trademark may, under certain conditions, stop others from using a similar mark on similar goods and services, federal registration offers the best protection.
The trademark laws protect the product or service name and any slogans used in the advertising, while the copyright laws protect the additional creative written expression contained in the ad. Then, if the fins were intended to be -- and actually are -- used to distinguish the particular model car in the marketplace, trademark law may kick in to protect the appearance of the fins. Trademarks may also become strong because they become well known to the public through their use over time or because of a marketing blitz. The USPTO does not notify the trademark owner when these statements are due, and if these documents are not timely filed, the federal registration is canceled. Nolo will also use this address to ship the Nolo book(s) that you receive when you purchase your online trademark application. I highly recommend seeking legal counsel if you think your situation involves more than one owner of the trademark. Typically, an examiner will reject an application for technical (procedural) reasons or substantive reasons.
However, if you have formed and LLC, Partnership, or Corporation, then you will want to consider making that entity the owner of your trademark.
In addition, the owner of a federally registered trademark may, after five years of federal registration, claim incontestable status.
The total time for an application to be processed may range from a year to several years, depending on the basis for filing and the legal issues that may arise in the examination of the application. A technical rejection usually can be cured by an amendment to the application -- for example, if you mistakenly listed yourself as owner of the mark instead of your company. The three types of rejections that can prove more challenging are if the examiner objects because your mark is confusingly similar to an existing mark, if it is a generic term, or if the examiner claims your trademark is descriptive.
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