According to the United States Patent & Trademark Office, a trademark or service mark includes words, names, symbols, devices, or any combination thereof, used to identify and distinguish goods and services, and to indicate the source of the goods and services. In simple terms, a trademark is a brand.
COMMON LAW TRADEMARKS
It’s not necessary to file a federal trademark registration – simply putting the mark into the stream of commerce can create a common law trademark. But spending the time and money for a federal registration creates a legal presumption of ownership and gives the registrant an exclusive right to use the mark in connection with the goods and services listed in the registration.
While you can file a trademark application without a lawyer, it’s not a good idea. That’s because part of the application process involves checking to make sure that no one else is already using the proposed mark. A simple Google search is not enough. Trademark attorneys have access to specialized databases that will let you know ahead of time whether someone else has established rights in a mark – in other words, whether someone else could assert an infringement claim against your business if you use the mark. Since trademark application fees are nonrefundable (even if the application is denied), it makes sense to do your homework first.
DEFINING WHAT THE MARK WILL IDENTIFY
Before starting the application process, it is important to define the mark and the intended goods and services that will be identified by that mark. This will make your search of the USTPO database more useful and may simplify the application process.
If your application is approved and you receive a trademark registration, you will need to make sure that no one else is infringing on your mark going forward. While the USPTO tries to ensure that no other party receives a federal registration for an identical or similar mark for particular goods and services, it does not “police” trademark use. That means the owner of a registration is responsible for bringing any legal action to stop a party from using an infringing mark.