A trademark is a word, phrase, symbol or design, or a combination of words, phrases, symbols or designs, that identifies and distinguishes the source of the goods of one party from those of others.
A service mark is the same as a trademark, except that it identifies and distinguishes the source of a service rather than a product.
In practice, the legal protections for trademarks and service marks are identical.
It is actually not necessary for you to register your mark with the United State patent and trademark office to establish your rights in a mark. You can establish rights based on legitimate use of the mark. However, owning a federal trademark registration can provide several advantages, including:
- constructive notice to the public of your claim of ownership of the mark;
- a legal presumption of the your ownership of the mark and your exclusive right to use the mark nationwide on or in connection with the goods and/or services listed in the registration;
- the ability to bring an action concerning the mark in federal court;
- the use of the registration as a basis to obtain registration in foreign countries; and
Any time you claim rights in a mark, you may use the "TM" (trademark) or "SM" (service mark) designation to alert the public to your claim, regardless of whether you have filed an application with the US Patent and Trademark Office (USPTO). However, you may use the federal registration symbol "®" only after the USPTO actually registers a mark, and not while an application is pending.
Once a trademark or service mark is placed on the principal register, the owner receives a certificate of trademark registration good for an initial term of ten years. The registration may lapse before the ten year period expires, however, unless the owner files a form within six years of the registration date (called the Sections 8 and 15 Affidavit) stating that the trademark is either still in use in commerce or that the trademark is not in use for legitimate reasons.
The original trademark 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 U.S. Patent and Trademark Office (USPTO). Failure to renew a trademark registration does not void all rights to the trademark, but if the owner fails to re-register, the special benefits of federal registration will be lost.
The trademark application process can be quite complex, and a Patent and Trademark Office will not assist in the preparation of application papers. Accordingly, if you are thinking of applying for a trademark or servicemark you should hire a trademark attorney or agent.
