Intellectual Property – Trademark or Service Mark

Intellectual Property – Trademark or Service Mark


So what is a trademark or service mark — once again (and I promise – maybe – this is the last time) I’m going back to the government who grants these rights:  http://www.uspto.gov/web/offices/pac/doc/general/whatis.htm.   “A trademark is a word, name, symbol or device which is used in trade with goods to indicate the source of the goods and to distinguish them from the goods of others. A servicemark is the same as a trademark except that it identifies and distinguishes the source of a service rather than a product. Trademark rights may be used to prevent others from using a confusingly similar mark, but not to prevent others from making the same goods or from selling the same goods or services under a clearly different mark. Trademarks which are used in interstate or foreign commerce may be registered with the Patent and Trademark Office.”  Some additional basics:  (i) generic terms may not be registered as a trademark – try to think of something unique (e.g. EXXON for petroleum products) or a word that suggests a meaning but does not describe the product (e.g. APPLE for computers); (ii) in order for you to get trademark protection you will need to use the mark “in commerce” (e.g. make it available to the public), however, an “intent-to-use” application lets you protect the name from others for up to one year while you work on developing your product; (iii) trademarks are registered in classes ( depending on the type of goods which are being covered – e.g. goods/services and then subcategories under those headings) (iv) trademarks must be registered in each country in which you wish protection; and (v) a registration is not perpetual so it must continue to be used in commerce and must be renewed periodically (the time period is dependent on the jurisdiction in which the mark is filed).

OK, pretty simple – right?   Well, not so fast, there are a lot of things to focus on here, your company name, logo, domain name(s), etc.  So let’s look at these in a logical progression.  You need a company name – your identity to the outside world.  In an ideal world that name will serve as the initial branding for your company and hopefully, as the domain name for your company’s website.  You’ll need to make sure that no one else has already taken that name so start by checking the government website at: http://tmsearch.uspto.gov/bin/gate.exe?f=tess&state=4810:8ee8td.1.1 ; then check and see if the name (or some reasonable facsimile) is available as a url.  If both of these check out then you should make haste to file an intent-to-use application for the trademark with the USPTO and register the domain name.  There are lots of ways to register the domain name so why don’t you go to http://www.thesitewizard.com/archive/registerdomain.shtml for a short tutorial.  With respect to the intent to use for your trademark, while it may seem simple, the registration of a trademark has lots of pitfalls and it would be my advice to work with an attorney who specializes in this area.   Notwithstanding, if you wish to try a standard service check out http://www.vcorpservices.com/.   Well of course there are lots of other questions – but it’s time for a new topic.

Next installment, Contract, Contracts and More Contracts, and remember, ALWAYS CONSULT AN ATTORNEY FIRST.

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About ebizlawyer

Laurence Associates has extensive experience in outsourcing, internet law, software, computer systems, data protection, information security, privacy and corporate services both from the customer and vendor perspective. Elaine Laurence, the founding Principal of Laurence Associates, has unique expertise in understanding and handling transactional issues facing financial services institutions and small businesses. For more information visit my website at: http://www.laurenceassociates.com
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