Trademark: Legal Protection For Business Owners

Trademark application process in the United States is usually stretched and strenuous. Sometimes not up to half of the patent applications have the probability of being approved on a yearly basis. Some approved applications become subject of Appeals by other contesting parties.

Based on the preceding, it has become imperative for business owners to keep their trademarks protected from cancellation, infringement, and other legal issues considering the challenges faced by applications which seek to register same.

How To Register a Trademark:

The procedure to register a trademark in United States of America is simple but stretched. You may consider the following steps:

  • Visit www.uspto.gov the website of the U.S. Patent and Trademark Office.
  • Conduct a Trademark Comprehensive Study (TMCS) or search. Consider the registration probabilities to ensure that someone else has not registered the mark already by checking the Trademark Electronic Search System database.
  • File your trademark application before the Trademark Office.
  • Avoid adding a domain extension to your trademark. This is to prevent third parties from registering the same name by adding another extension.

Note: You may engage the service of a Trademark Attorney to help you handle the complications and legal issues that are connected to the process if you are unable to handle it yourself.

It is advisable for you to engage a Trademark Protection Service to assist you in monitoring the use of all your trademarked materials and products against violations and infringements.

You can visit upcounsel marketplace for competent Trademarket Attorneys.

UpCounsel has lawyers who are well-versed in the dynamics of Trademark. They can figure out all the complexities as we have previously written in our article in multiple fields of law, such as technology, communications, security, and trademark/copyright, and can help resolve your Trademark related legal issues.

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How To Protect Trademark, Maintain Your brand And Grow in Value:

  • Update Your Trademark Registration Paperwork Regularly

The Trademark Office presumes that inaccurate data on a filed paperwork signifies fraud whether or not it is intentional or deliberate.

The famous case of Hachette Filipacchi Presse V. Elle Belle is a locus classicus on the subject of Trademark in relation to data filed at the Trademark Office. Elle Belle (the Respondent on record) lost their trademark for not updating the changes on their registration paperwork upon approval of their application but consequent upon an adjustment of business from sales of women’s clothes as an initial business to sales of men and children’s clothing. The failure to update their records cost them their trademark.

It is expected that business owners appreciate the fact that Trademark Office presumes fraud the moment a business owner fails to notify them of a change or an adjustment in the nature, object or circumstance of their business and the consequence of such failure is cancellation of a previously approved trademark or patent rights.

  • You Must Be Consistent With the Distinct Nature And Character Of Your Trademark And How It Is Displayed

To protect your brands, you have to always make them visually apparent on your products and dissimilar to other products to emphasize your claim of ownership of the Trademark.

How To Emphasize A Claim of Ownership of Trademark:

  • Always unambiguously display your brand names to depict your ownership of same and promptly dismiss the suggestions or temptations of infringement by third parties.
  • Always use proper designation in product descriptors of Trademark Brand Names such as packaging and cataloging.
  • If your Trademark is yet to be registered, use the classification of “TM” or “SM” to protect ownership of same. For instance (“PROSERVE™ brand climbing center”). This will protect you against future violations or contest by third-party infringements.
  • Ensure That You Keep Your Records Of Date of First Use:

To protect your Trademark, you must keep records of the first date that your brand was first used or consumed. The records must be permanently preserved, and it will be needed or called in evidence where you want to initiate or defend a legal proceeding in court for infringement.

The principle of the date of first use has had various interpretations for instance: where the goods are physical and digital goods, first use has been interpreted to mean when the products departs from the manufacturing site and arrives on the ledge, mantelpiece or shelves.

Where it is for a Brand Trademarks related to Service, date of first use have been interpreted to be the date when the Business Owner advertise or sell the specific services by means of advertising or a sales document bearing your trademark. Note that a Sales document also called a sales order (SO) is an internal document crafted by the seller, specifying that the customer is now set to purchase products and service.

Enforce your Trademark Against Infringement

It is very common to have competitors besieging a successful or established brand, product or service with the intent of infringing on the brand name or Trademark. Business Owners should be ever willing and vigilant not to condone competitors trying to infringe on your brand.

Permitting your brand to be duplicated by other competitors will amount to allowing them to erode the sales channels you have diligently worked and invested money to create.

It is reprehensible for Business Owners to allow themselves operate as Trademark Thieves by the use of hoax to associate themselves with established products and deceiving the general public through the use of established Trademarks.

In most cases they use slight variations in spellings, brand or name of the product or associated images to believing that there is a nexus between both products. They sometimes also imitate the distinctive color design of your packaging materials.

End-users of products or service may not have all the time to check and discover a slight change in spellings or color adjustments made by Trademark violators with the intent of stealing a brand or brand.

Customers in most cases have patronized a product or service without having any idea that they are not dealing with the actual Company or adhering to your opinion.

For instance where an Education Consulting Firm called “TRINITY HOUSE” is imitated in a radio advert by a competitor as “3NITY HOUSE”. Potential clients or customers and faithful adherers might never spot the slight but fundamental misspelling and misrepresentation that is capable of causing TRINITY HOUSE to lose a client and considerable funds to fraudulent Trademark violating company.

Business Owners must watch out for these violators and initiate legal proceedings against them as early as they can to avoid legal complications.

Ensure That You Protect All The “Words” Used To Recognize Your Brand And Associated with your Trademark

The words, symbols, names, or signs which serve to classify and differentiate your brand must be trademarked. Apply legal machinery to prohibit other brands or individuals from using them except in situations where there is a licensing or franchise agreement existing between you.

Endeavor To File For A Further Clarification of Trademark Brand Under Section 15 of Trademark Act After Five Years of Registration and Continuous Use of the Trademark

After Five Years of registration and continuous use of a mark, you are allowed further protection for your brand to it incontrovertible in most situations. Section 15 of the Trademark Act gives you advance elucidation to trademark your brand identifiers during litigation.

The probative and evidential value of your paperwork under Section 15 is fundamentally more biased proof in your favor before any Court or judicial process to establish that you officially own and use the trademark.

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The Difference Between a Trademark and a Copyright

Trademark is used to protect brand identity while Copyright protects original work such as dramatic, literary, musical and artistic arts. For instance novels, movies, songs or computer software, etc.

Usually, copyright lasts throughout the lifetime of the original author or creator plus an additional seventy years after his demise while a trademark is effectual unendingly, except for certain legal exceptions.

The Difference Between A Trademark And A Patent

This generally refers to the methods to be considered while protecting your intellectual property. Patents are related to the invention, and they are for limited time protection, for instance, drugs, machines, unique and useful industrial processes, or manufactured items. A patent right protects the inventor or creator by prohibiting a third party from using the method or making the product.

A trademark does not protect a physical object rather it operates to protect a word, phrase, signs, symbol, emblem or Logo that uniquely classify and differentiate a brand.

Note that a trademark in no way expires, as long as it is used continuously.

Slight Difference Between A Service Mark And a Trademark

There is a slight difference between a service mark and a trademark. In nearly all times, “Trademark” is used to refer to both Trademark and Service Mark and they are terms that can be used interchangeably for both protections.

However, going by legal definition, a trademark may refer to a word, phrase, sign, emblem or symbol that identifies the source of goods, while on the other hand, a service mark is a word, phrase, sign, emblem or symbol that identifies the source of a service, other than goods.

Trademarks registrations are necessary to protect your brand against contenders, and establishing ownership of marks during scrutiny from the Trademark Office and against the Trademark Trial and Appeal Board.

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