What is a trademark?
A trademark identifies and distinguishes the source of goods and services of one party from those of another. A trademark usually consists of a word, phrase, design, or a combination thereof, but may also consist of sounds, colors, or shapes. For example, the following familiar items all have trademark protection: the Tarzan yell; the shade of brown used by UPS for its vans, uniforms, and advertising; and the shape of the Coca-Cola bottle.
Because a company's trademarks are so closely associated with its image and reputation, they constitute an important and valuable type of intellectual property right. Trademark protection confers the right to exclude others from using the mark or from using a mark so similar as to be confusing.
The term of protection is ten years, but unlike patents, trademarks are renewable indefinitely as long as the mark is still in use in commerce.
Types of Trademarks
Registered Trademarks refer to trademarks that have been registered by the United States Patent and Trademark Office (USPTO).
State Trademarks, as the name suggests, are trademarks that have been registered by a state, not the USPTO. These trademarks are only valid in the state where they are registered.
Common Law Trademarks are trademarks that have not been registered by the USPTO, nor have they been registered by any state. It is not necessary to register a trademark. You can establish legal rights simply by using the trademark in commerce. State courts have jurisdiction for these trademarks.
Trademark Symbols
Three symbols are commonly used to indicate trademark protection:
- TM ("Trademark") is used to indicate a claim of trademark rights for a product. Registration of the mark with the USPTO is not required when using the TM symbol, but the mark must already be in use in commerce or there must be a good faith intention to do so. State and Common Law Trademarks may use this symbol.
- SM ("Service Mark") is used to identify and distinguish the provider of a service from another service provider. As with the TM symbol, registration with the USPTO is not required, but the mark must be in use in commerce or there must be a good faith intention to do so.
- ® indicates that the mark is "registered" with the USPTO. Only federally registered trademarks are permitted to use this symbol.
