Trademark law protects names, symbols, and phrases used to represent a company or its products. The law may protect a company’s “trade name” –the name used by a business to distinguish itself from other entities ( e.g., SOUTHWEST and BURGER KING ) The law also protects a company’s “ trademarks,” which are any words (e.g., TIDE), names (e.g., Ford), symbols (e.g., McDonald’s “Golden Arches”), PHRASES (e.g. “ Built Ford Tough”), or a combination of those elements used to identify a company’s products and distinguish them from those sold by others.
Companies that provide services instead of goods can protect their names (e.g. Applebee’s) via “service marks.” It is important to remember that these marks are essentially the same as trademarks, but they apply to service providers.
Trademark law can also protect a product’s design or packaging style-known as “trade dress”-which helps to distinguish it from rivals. One example of trade dress is the familiar label around a Campbell Soup can.
Trademark law protects a company’s distinctive symbols by forbidding others from using symbols that are likely to create confusion among customers. From an economic perspective, the law protects the value of the trademark owner’s reputation and its investment in advertising. It is essential for a company to take appropriate business and legal steps to protect its own marks and to ensure that it does not infringe on marks of others.
When a business selects a trademark or service mark, it should have a healthy respect for trademark rights. Many businesses make an initial mistake by selecting a mark already in use and drawing a charge of infringement of others’ rights, or selecting a mark that is so descriptive of the product or service provided that the user cannot maintain exclusive rights.
Trademark rights in the United States arise from use, not registration. Even if a mark is not registered, the owner can acquire substantial common law rights in the geographic area where it is actually used.
BENEFITS OF REGISTRATION
• A legal consumption that the company owns the mark and has the exclusive, nationwide right to use it in connection with the goods and/services listed in the registration.
• The ability to bring an action concerning the mark in Federal court.
• The right to sue for damages, lost profits, and costs in federal court.
• The right to recover treble damages and attorneys ‘ fees in cases of willful infringement.
STATE v. FEDERAL REGISTRATION
State registration protects an owner’s rights only within that state. The main benefit of state registration is that it provides constructive notice to other companies in the jurisdiction where the mark is being used.
Federal registration, in contrast, provides significant advantages for protection and enforcement, and may extend a registrant’s rights nationwide. Therefore, my advice would be to register your mark with the U.S. Patent and Trademark Office if possible. Federal Registration is available if (A) the owner has used the mark in interstate or foreign commerce, ( B ) The mark is distinctive, (C ) The mark is not confusingly similar to one already owned by another and used on similar goods or services.
THE OWNER OF A FEDERAL REGISTRATION HAS NATIONWIDE RIGHTS IN THE MARK, SO IT IS NOT NECESSARY FOR SUCH AN OWNER TO SEEK STATE REGISTRATION
A company should file for federal trademark registration as soon as it can establish a bona fide intent to use that mark in interstate commerce. The filing date of such an “intent to use” application becomes the constructive date of first use, which is important for establishing priority among competing claims.
States do not allow intent-to use applications. A mark must actually be used in state commerce before it can be registered in the state.
You should search any proposed mark before use and seek registration as soon as possible. By the time trademark protection is sought, the mark may be the intellectual property of another.
ALWAYS SEEK OUT A KNOWLEDGABLE TRADEMARK ATTORNEY TO ASSIST IN THE ABOVE PROCESS.
Copyright gives authors the exclusive control of their “original works of authorship” for a fixed period of time. Copyright law in the United States is Constitutional in origin, and controlled by federal statue.
A copyright pertains to the expression of original ideas and thoughts in words, sentences, paragraphs, computer programs, sketches, pictures, graphs, or any method of conveying thoughts or ideas, commonly referred to as “writings” or “works of authorship”.
In contrast to patent law, which protects the invention, a copyright does not protect the idea, but only the manner in which the idea is expressed.
Todd Levitt, Mount Pleasant Michigan Lawyer is an adjunct professor at Central Michigan University teaching in the College of Business Administration. Todd Levitt has also represented CMU Students for more than 17 years for all misdemeanor and felony charges. Todd Levitt is also a CMU Alumni.
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