Whenever a business or product name is used on packaging, a label, a sign, an Internet site, or in any way advertised to the public, it falls within the arena of trademark law. For instance, when a small business uses its mark in advertising a product or service in the local newspaper, it becomes subject to trademark law. Almost all businesses are subject to the complex body of Trademark law. It is therefore vital that business owners become aware of their rights, duties, and obligations in relationship to Trademark Law.

What is a Trademark?

A trademark (or "mark") is any word, term, name, design, slogan, symbol or other distinctive item that serves to identify a specific product brand. A "service mark" is any word, term, name, design, slogan, symbol or other distinctive item that serves to identify a specific brand of service. Trademarks and service marks are treated identically under the law.

Use of a trademark establishes rights to it. If use of a trademark can be shown, even trademarks that are not registered are entitled to "common law" rights. Absent federal registration of a trademark however, these common law rights will only extend to the geographic area in which the trademark is being used. Federal Trademark registration extends these rights nationwide. It is also far easier and less costly to prevail in an infringement action if a trademark is federally registered. Typically it is also far easier to collect damages and/or attorneys' fees against an infringing party. By failing to federally register your trademark, you will likely face an uphill battle in the event of a legal challenge against your trademark.

Additional advantages to obtaining Federal Trademark Registration include the right to put the registration notice "®" after the mark, which notifies others of your trademark registration.

Because registering a trademark requires extensive knowledge of trademark law and procedures it is highly recommended that you use the trademark services of a trademark lawyer. A trademark lawyer can advise you on many aspects of your trademark filing and on trademark services. For example:
A trademark lawyer should be used when choosing a product name trademark or a trademark slogan. A trademark lawyer can order a trademark search report. Your trademark lawyer should then counsel you on the results of the trademark search and whether it is safe to proceed with using the proposed trademark. You trademark lawyer should also counsel you on any questions you may have, such as how to get a trademark, the cost to register a trademark and how to trademark a logo or trademark slogan.

A trademark attorney should then help you draft the trademark application. A trademark attorney can help you ensure that your trademark application is complete. Your trademark attorney should review your specimen and drawing page to determine that they satisfy the requirements of the USPTO (United States Patent and Trademark Office).

A trademark lawyer should be able to work with the USPTO to answer any objections the trademark lawyer for the USPTO may have with your trademark application. Your trademark lawyer should write briefs that address any initial objections to register the trademark.

A trademark attorney can advise you on how to handle certain situations such as receiving or drafting a cease and desist letter. A cease and desist letter is written when a party believes their trademark is being infringed upon. A cease and desist letter should be evaluated by a trademark attorney who will provide you with trademark assistance.

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