Law
Offices
KELLY LOWRY & KELLEY, LLP
PATENT, TRADEMARK AND COPYRIGHT
CAUSES
TEL:
(818) 347-7900
FAX:
(818) 340-2859
E-MAIL:
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United
States Trademark Registrations
U.S.
Trademark rights can be acquired in one of two ways:
-
Using
the mark on or in connection with goods or displaying
the mark in the sale or advertising of services,
or
-
Filing
a federal intent-to-use trademark
application, declaring that the applicant has
a “bona fide” intent to utilize a
particular mark in connection with designated
goods and/or services.
Registration
of a mark is not mandatory, and rights will be protected
without it. However, there are may advantages
to securing a federal trademark registration.
Reserving a corporate name in one or more states is
irrelevant to trademark rights.
The
application process takes about a year. Once issued,
a federal registration has substantial advantages
in that it:
-
is
constructive notice of the registrant’s
claim of ownership, applicable nationwide to everyone
subsequently adopting marks; will be listed on
search reports obtained by others;
-
is evidence, albeit rebutable, of the registrant’s
exclusive ownership rights, shifting the burden
of proof to anyone challenging those rights, and
in some circumstances it can be conclusive evidence
of those rights;
-
gives
federal courts jurisdiction to hear infringement
claims, counterfeiting claims, and related claims
of unfair competition under state law;
-
precludes
states from requiring modifications in the display
of the registered marks;
-
can
be used as a basis for registration in some foreign
countries; and
-
can
be recorded with the U.S. Customs Service to prevent
importation of infringing foreign goods.
Use
of a trademark registration notice
before the mark actually has been registered is
not only inappropriate, but may also prevent the
owner from obtaining relief against an infringer. The informal symbols TM (for trademarks)
or SM (for service marks) are often
used with unregistered marks to indicate a claim
of common law trademark rights. After registration,
one of the following trademark registration notices
may be used: “Registered U.S. Patent and Trademark
Office,” “Reg. U.S. Pat. & TM Off.”
or ®. Such notice is not mandatory, but
under some circumstances its use is necessary to
obtain damages from an infringer.
A
federal trademark registration is maintained by
filing a Declaration of Use during
the sixth year after its registration, and by Renewal
every ten years as long as the mark is still in
use in federally regulated commerce. The law
provides that non-use of a mark for two consecutive
years is ordinarily considered abandonment, and
the first subsequent user of the mark can claim
exclusive trademark rights.
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