What is a Trademark and How Do you Search for One on USPTO?

What is a Trademark?
by Anne Lane

A trademark is any word, name, phrase, symbol, sign, design, or packaging that is distinctive and that identifies and distinguishes the source of a particular product. A trademark typically appears on the product or on its packaging. A trademark is what allows the consumer to identify the source and therefore the quality of trademarked products. Examples of familiar trademarks are the Cream of Wheat logo, featuring a chef holding a bowl of cream of wheat cereal, and General Electric's GE medallion, both of which recently celebrated 100 years as registered trademarks.

There are two ways to establish the right to register a trademark. The first way is to begin using the mark. In general, the first party to use a trademark in commerce has the right to register the mark. A party can also file an application of intent to use the mark in commerce with the Patent and Trademark Office. If two different parties are using the same trademark and neither one has registered the mark, it will be up to a court to decide who has the right to use the trademark. Registration is not required in order to use a trademark, but it may be a good idea since it creates a presumption that the party is the entitled to use the mark. An attorney who is familiar with trademark law can explain the advantages of registering your trademark.

An entity's right to use a trademark can last indefinitely, as long as the owner continues to use the trademark. Trademark registration lasts for a period of 10 years, but can be renewed indefinitely. The first time a trademark is registered, its registration must be preserved between the fifth and sixth year of registration. This is accomplished by filing an affidavit that sets forth information required by the Patent and Trademark office. If the registration is not preserved by this method, it will lapse and be cancelled.

If you are developing a trademark to identify your product, keep some things in mind: A trademark should be unique. If it is too similar to another trademark it will not be allowed, even if the other trademark is for a completely different product. You should also avoid use of generic terms because they cannot be trademarked. A trademark should serve to set apart your product and distinguish it from other similar products.

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