A Trademark Is Used to Identify the Source of the Goods or Products.

A trademark can be anything consumers recognize as being linked with a particular company and/or product/service, from a symbol (think Nike ® swoosh symbol), a single word (think Apple ®), or a phrase (think Things Go Better With Coke ®) to an entire advertising campaign (think “Where’s the Beef?”). Brand recognition and repeat business can be fostered using trademarks. For federal trademark protection, you file your trademark with the United States Patent and Trademark Office (USPTO). Even if your firm has a registered trademark, you should still be aware of identity theft, including your company name, product design, logo, or anything else that sets your product apart or distinguishes it from your competition. For this reason, you may consider retaining legal counsel for intellectual property litigation. Heimlich Law, PC handles trademark law and trademark infringement disputes.

In copyright law, direct infringement occurs when a person, without authorization, reproduces, distributes, displays, or performs a copyrighted work, or prepares a derivative based on a copyrighted work.  (See 17 U.S.C. § 106)

Copyrights are both Federal and State issues as sometimes State law can preempt Federal therefore it’s possible it can get complicated.

Common in some countries but less so in the US (although becoming more important) are moral rights, which refers to rights created under notions of integrity and reputation and include the exclusive right to do derivative works and obtain publication rights for derivative works.

Rights in a Trademark

Once a trademark is registered, the owner of the mark is granted the sole discretion over whether to allow others to use the trademark in connection with the registered products or services. Trade dress protects a product’s outer appearance and packaging, whereas service marks offer the same security for services. IBM is a registered trademark, whereas United Airlines is a service mark. Unlike copyrights, which generally protect creative works, trademarks defend specific aspects of a product or service from imitation.

A trademark can list as long as the company continues to use it. For this the company should police the mark for encroachment by dishonest competitors who could try to cash in on the success of its trademark by using confusingly similar designs on its products. The importance of a consumer base that has come to identify a trademark with high-quality goods or services is recognized by the law when those trademarks are given legal protection. Shoppers expect the real thing, not a clone.

With the help of the Lanham Trade-Mark Act (15 U.S.C. § 1064), trademark owners now have a way to protect their intellectual property. While the use of the trademark, rather than registration, is what establishes ownership of the brand, trademark registration offers numerous advantages and is highly recommended. Successful businesses invest time and energy into registering their trademarks since doing so can make protecting and expanding their brands in the marketplace easier. Trademark registration is necessary if you want to use the Federal court system to enforce your rights.

Have a Question?

U.S. Patent and Trademark Office Trademark Registration:

U.S. Patent And Trademark Office Trademark Registration: Once a brand feature is created and used commercially, it automatically attains some rights under common law. However, many enterprises prefer the additional protection and security that Federal and State trademark registration provide. To do so, you must first apply for a trademark or service mark with the State or USPTO (US Patent and Trademark Office). Before applying or using a mark, you or your attorney should run a trademark clearance search to ensure that the name or design you choose doesn’t infringe on an existing trademark, even if the class of the trademark is different. The USPTO will reject a trademark application if the proposed mark is confusingly similar to an already registered trademark.

Having such valuable intellectual property comes with a price, though, and that is the need to be constantly vigilant and on the lookout for any infringements of your brand. You can claim damages if someone uses your trademark illegally by selling counterfeit versions of your products under your name.

You may be forced to protect your intellectual property through trademark litigation.

You’ll need proof that a competitor is intentionally misleading customers about your products’ true origin in court before you can successfully defend your trademark against infringement.

Heimlich Law can assist you in defending your brand against an infringement claim period.

If you suspect trademark infringement by a rival, you should consult with a trademark attorney familiar with the options available to you for enforcing your trademark and protecting your business. A trademark application to the USPTO can be checked for potential infringement by a lawyer specializing in intellectual property law.

A (polite) demand letter may be needed to get the other party to stop using your logo without authorization in the event of accidental trademark infringement. If the infringer does not respond to the polite letter, trademark litigation in Federal court may be necessary as an alternative. When trademark issues arise, Heimlich Law, PC is available to assist you.

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