Trademark law is a subset of unfair business competition, the general purpose of which is to prevent a business or entrepreneur from misrepresenting the nature or quality of its products or services, or passing off its products or services as the products or services of another.
Trademark law addresses the overlapping and conflicting uses of trademarks, services marks, design marks, business slogans and tag lines, packaging, and trade dress by different entrepreneurs and businesses. Commonly, trademark law is applied to resolve disputes when competing businesses adopt similar trademarks to identify thier businesses, products, service names or logos to in the public arena. The laws for resolving these disputes generally favor whichever entrepreneur or business was first to use the name, logo, slogan, tag line, or trade dress on a category of goods or services. These laws derive from decisions of federal and state courts and from federal and state statutes established specifically to address trademark ownership.
What is a Trademark?
In short, a trademark consists of any word, name, symbol, figure, letter, or device used by a business, manufacturer, entrepreneur, merchant to identify and distinguish their products or services from those sold or offered by others.
A trademark helps represent a level of quality and identity that consumers can associate with a particular business, service, or product. It is a short-cut that enables a business to convey through the use of their mark, a level of desirability in order to induce a purchaser to select their product. Trademarks can be placed on signs, advertisements, product labels, product packaging, and other marketing materials. Trademarks can be seen, heard, and even touched. A trademark is a form of trade identity for a business that, if properly promoted, can gain enormous value.
How Is A Trademark Determined?
As a general rule, a trademark is owned by the entrepreneur or business that is first to use the trademark in commerce – that is, the first entrepreneur or business to associate the trademark with a particular service or product and actually use the trademark in the marketplace. After the first use in a commercial setting, the owner may be able to prevent others from using an identical or similar trademark for its services and products. The rights of a trademark owner, particularly for a trademark that is not federal registration with United States and Trademark Office (USPTO), may be limited by the geographic location in which the trademark is being used.
For an entrepreneur or business to establish first right for the use of a trademark, it should file an intent to use (ITU) trademark application or an actual use trademark application with the USPTO. The prosecution of a trademark, absent delays, should take between eight and fourteen months, if there are no problems or conflicts with the proposed trademark. Once the trademark registers, the time of use will predate to the time of filing the trademark application. This is why it’s very important for entrepreneurs and businesses alike to protect their trademarks as soon as possible.
How a Trademark Differs from Copyright and Patents
As discussed, a trademark is a word, name, symbol, or device that is used in commerce in order to identify and distinguish their products or services from the products or services of another. In comparison, a copyright affords legal protection to the author of an original work. The author retains exclusive rights of the original work, as well as any derivative works, that typically lasts the author’s lifetime plus an additional 70 years. Lastly, a patent provides property rights of an invention to the inventor. This gives the inventor the right to prohibit others from using, selling, making, or offering the invention for sale in the U.S. as well as prohibit another from importing the invention into the U.S. for typically 20 years.
Because each category offers a different length of legal protection, it is beneficial to have your intellectual property registered as a trademark when it is possible.