Trademarks

A trademark, generally speaking, indicates the source of goods or services. Examples of trademarks are business names, brand names, and logos. Trademarks can also include smells, colors, the look and feel of packaging as well as the look and feel of businesses. Almost anything that is capable of identifying your goods or services from the goods or services of another is a potential trademark.

If you own a trademark, and another person or entity begins to use a mark that is confusingly similar to your mark, you have the right to stop their use. In fact, even if the junior user’s mark is not confusingly similar, but is likely to be confused with yours, you can stop them.

A federal law called the Lanham Act, allows for the registration of certain marks as well as the enforcement of marks with or without registration if such enforcement is to prevent the likelihood of confusion or other types of unfair competition.

Registration provides for certain benefits to the owner of a mark, though before you can get a registration, you need to jump through some hoops and pay a filing fee. Even without registration, you have the right to prevent others from using marks that are likely to be confused with yours. With or without registration, you also have the right to license your marks.

If you apply to register a trademark, you will pay a fee. That fee is used to pay an attorney at the US Patent and Trademark Office to look at your application and determine if there is any reason to reject it. If there is any reason to reject your application, the attorney will notify you of such and you will have a period of time to fix the problems that led to the rejection(s). If you fix all the problems, or if none were noted, you will receive a registration certificate. If you do not fix the problems leading to the rejections, you will not receive a registration.

As example, if you wanted to start a company called Exxon, you would likely have a difficult time avoiding being sued. Exxon has a strong argument that any other company with the same name is likely to be confused with it. Exxon is a made-up word – it does not exist in the dictionary. Moreover, it is a multi-billion dollar company that is well known throughout the world. Why then, are there two companies with the name Apple? There is a record company, and a computer company. Well, the argument is that computers are distinct from records and they are not likely to be confused with one another.