So you’ve worked hard to come up with your business idea, picked your
brand name and incorporated your company. Congratulations but you’re not done
yet. It is imperative that you apply for trademark protection for your brand.
If you don’t trademark your business, you’ve put yourself and your business in
a vulnerable position. At any moment, a competitor could swoop in and take your
name, your brand identity and everything you’ve worked hard to create.
Benefits
of registering a trademark
1.
A Federal trademark registration carries a presumption of ownership and
validity of the trademark during the first five years of registration.
2.
A registration can be used offensively to prevent others from adopting
and using confusingly similar marks. Companies looking to register their
trademarks routinely check the USPTO database for confusingly similar trademark
applications and registrations and make decisions to adopt and use new marks
based on the information in the database.
3.
The ® is constructive notice to third parties of your trademark rights.
4.
A trademark registration gives the owner nationwide rights in the
trademark as of the date of filing the application.
5.
After five years of securing a trademark registration and continuous use
of the trademark in commerce, the owner can file an affidavit of incontestability,
and the registration becomes conclusive evidence of ownership and validity of
the mark. This incontestable status is recognized in Federal courts in the
event the owner sues for trademark infringement.
6.
A registration is a valuable commodity and can be the basis of a license
to use the mark by third parties.
When
to Register a Trademark
Entrepreneurs should carefully select trademarks for their businesses.
Trademarks identify the source of goods and services and represent the goodwill
and quality of the goods and services. Although the cost of getting a Federal
trademark is relatively inexpensive, the costs to defend a trademark
infringement lawsuit or to select a new trademark after making a substantial
investment in a new product or service can be quite costly. It is better to
identify several potential trademarks, order a search report from a reputable
search company and then have a qualified attorney assess the risks associated
with each potential trademark. Entrepreneurs can also file an Intent-to-Use
trademark application, which preserves their rights in the mark as of the
filing date of the application.
Risks
of Not Registering a Trademark
1.
Other businesses could adopt and use similar trademarks and logos of your
business legally.
2.
An entrepreneur could lose the presumptions of ownership and validity that
a trademark registration provides.
3.
The business could risk the loss of nationwide rights to the mark and
being limited to the area where they do the most business.
4.
A business does not have the right to use the ® symbol without
registering the trademark.
Copyright,
Trademark or Service Mark
Copyrights, trademarks and service marks all protect different rights.
Copyrights protect the original expressions of an idea in a tangible medium
such as a book or sculpture or song. Trademarks protect the name and logo of a
company in connection with goods to identify the source of those goods. Service
marks are used in connection with the source of a service rather than goods.
Infringing
Competitor
If you find that another business is infringing on your trademark,
service mark or copyright, consult an attorney. An attorney is likely to send a
cease and desist letter to the offending business to inform them of your rights
and request that they stop such use. An attorney may also file an opposition to
a trademark application, if necessary and file an action in court to stop any
infringing uses.
Life
of a Trademark
U.S. trademark registrations last for ten years and are renewed every ten
years. However, after the first five years, the trademark owner must file an
Affidavit of Use called a Section 8 Affidavit in order to maintain the
registration. The fee for this Section 8 Affidavit is currently $100 per class
of goods or services, plus the attorney’s fees to prepare and file the
Affidavit. Additional fees will apply if the Affidavit is filed late or filed
with a Section 15 Affidavit of Incontestability.
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