Who Needs a Trademark?

A trademark is associated with a brand, a unique identification source, which is attached to a product or service. For instance, a product or service is usually associated with a word, logo, phrase, symbol or combination thereof when being offered to consumers in the stream of commerce. These associations are what is known as the product or services identification source, it is how the consumer identifies with the product or service and its quality. The very idea behind trademark law is to prevent consumer confusion in the marketplace.

A trademark can be acquired through the following ways: state registration, federal registration or through common law use of a mark. Registering your mark with the USPTO can give you invaluable benefits. Obtaining a registration provides the trademark owner with the best protection against infringers.

It is critical to choose a mark that consumers can distinguish from other goods and services in the marketplace. The less distinctive a mark is the less protection the trademark owner has. Meaning the more descriptive a mark is the less protection the trademark owner has. For example, one cannot simply trademark a suit case with the brand name, “zipper bag on wheels”. Compare that descriptive name to the famous suitcase manufacturer “Samsonite.” See the difference?

Better use it or you lose it. Trademark rights do not last forever. A trademark owner must prove, by submitting a specimen, with the trademark application, that the trademark is actually being used in the stream of commerce, i.e. the mark identifying the product or service is being used to sell those same products and services.

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