News & Information

Does your business use and rely on a trademark or service mark? If your answer was yes, how do you know when there are issues with your trademark or service mark that require legal advice? If your answer was no, are you absolutely sure your business is not using a trademark or service mark?

A trademark is a word, phrase, symbol, or design, or a combination of a word, phrase, symbol or design that distinguishes and identifies the source of goods of one party from all other parties. A service mark distinguishes and identifies services as opposed to goods. A trademark or service mark can be an important and valuable tool for your business. Infringement upon that trademark or service mark by another business may significantly lower the value of that tool. On the opposite side of the coin, you should be aware if your business is indadvertently infringing on the trademark or service mark of another business.

Take the pop quiz below and test your knowledge base regarding trademark law. You may have trademark or service mark rights of which you are not aware and should be enforcing.

True or false: Only identical marks can cause trademark infringement. False. Trademark infringement can exist where there is a “likelihood of confusion,” which includes analysis of the similarity of the marks, the goods/services, the markets, the customers, owners’ intent, and other factors.

True or false: A trademark that has not been registered cannot be enforced. False. Although registration of a trademark gives a trademark owner important benefits (such as nationwide protection and litigation advantages, etc.), a trademark owner can enforce its rights without a registration under the common law, state law, and federal unfair competition law.

True or false: I can use a “TM” symbol after my trademark without a registration. True. A trademark owner may use the “TM” or “SM” designations, even without a federal registration. The trademark symbol ® may not be used in connection with unregistered marks — that designation is reserved for trademarks that have been registered through the United States Patent and Trademark Office.

True or false: If I register a mark first, I automatically own it. Not necessarily true. Trademark rights are given to the first to use a mark. So, a person who begins using a mark prior to the filing of an application to register a confusingly similar mark would have superior rights, and may have grounds to oppose the application.

Please contact us if you have questions regarding whether you are in fact using a trademark or service mark or regarding the rights of the holder of a trademark or service mark.