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Trademark Issues

What is a Trademark?

A Trademark is a unique word, phrase or symbol or design that tells the public at a glance something about you or your organization. A "service mark" is the same as a trademark, except that it identifies and distinguishes a particular service rather than a product. Some trademarks are so easily recognized that they are unmistakable. Take for example, "Coke," "Mercedes Benz" "Exxon," "Oreo."

The federal registration of trademarks is governed by the Trademark Act of 1946, as amended, 15 U.S.C. 1051, et seq. The Trademark Rules, 37 C.F.R. Part 2; and the Trademark Manual of Examining Procedure (2d ed. 1993). The Lanham Act, 15 U.S. C. Section 1051, protects registered trademarks.

A trademark is different from a copyright or a patent. A copyright protects an original artistic or literary work. A patent protects an invention.

Companies spend millions of dollars in marketing and advertising to make the public familiar with their trademarked product. As a result, they do not want competitors "piggy backing" on the goodwill and reputation they have developed by copying their trademarked symbols. The test for trademark infringement is "likelihood of confusion."

Establishing Trademark Rights .

Trademark rights arise from either: (1) actual use of the mark; or (2) the filing of a proper application to register a mark in the Patent and Trademark Office (PTO) stating that the applicant has a bona fide intention to use the mark in commerce.

Federal registration is not required to establish rights in a mark, nor is it required to begin use of a mark. However, federal registration can secure benefits beyond the rights acquired by merely using a mark. For example, the owner of a federally registered trademark is presumed to be the owner of the mark and is entitled to nationwide use of the mark.