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Basic Information about U.S. Trademarks

What is a Trademark?

A trademark is a word, phrase, symbol, or picture used in connection with the sale of goods or services. A trademark identifies the goods or services as being supplied by a particular source. As defined in section 45 of the 1946 Act, a trademark "includes any word, name, symbol, or device, or any combination thereof adopted and used by a manufacturer or merchant to identify his goods and distinguish them from those manufactured or sold by others."
__ A trademark is different form a tradename or company name because a trademark is always in view of the customer. For example, Kleenex® is a trademark, but it is not a company name. Purchasers of these tissues may not even know the name of the company selling them. Many company names (tradenames) are used as trademarks, but this is not always the case and the distinction is important.
In the United States, trademark rights are inextricably linked to use of the trademark in commerce. Trademark rights begin with use of the trademark and lapse when the use of the trademark is abandoned.
__ Trademarks serve two functions: to indicate origin, and to guarantee the quality of the goods or services bearing the mark.
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Choosing a Trademark
A trademark should be carefully chosen. It is supposed to be distinctive, not descriptive. The best trademarks are words that have no meaning until given meaning as a trademark, e.g. XEROX®. These trademarks are said to be fanciful.
The next best type of trademark is what is called suggestive. These are words which suggest the product, but do not describe it, e.g. Jaguar ®. A jaguar is sleek, fast and powerful; so is the car which carries the name.
__ Poor trademarks include commonly used words like Acme, Paramount, Universal, etc. Words which are purely descriptive have no trademark value and cannot be appropriated, e.g. the word Cola for cola soda. However, Cola could be a good trademark for something other than soda.
__ Names of persons and places fall under special rules and should be avoided unless there is a special reason to use them.
__ Before investing money in advertising a trademark, a search should be made to be sure the trademark is not already in use by another.
__ Once a trademark is in use, it should be identified with the symbol or the word Trademark. The registration symbol ® should only be used after the trademark is registered.
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Trademark Registration
A trademark used in interstate commerce may be registered with the United States Patent and Trademark Office (PTO). Registration grants certain valuable legal rights which are not otherwise available to the trademark owner.
__ Trademarks are registered by filing an application with the PTO. The application must contain: (a) A drawing of the mark; (b) Five specimens or facsimiles of the mark (e.g. labels); (c) The required filing fee; and (i) The name of the applicant; (ii) The citizenship of the applicant; if the applicant is a partnership, the names and citizenship of the general partners or, if the applicant is a corporation or association, the state or nation under the laws of which organized; (iii) The domicile and post office address of the applicant; (iv) A statement that the applicant has and is using the mark shown in the accompanying drawing (or has a bona fide intention to use the mark); (v) The particular goods on or in connection with which the mark is used; (vi) The class of merchandise according to the official classification if known to the applicant; (vii) The date of applicant's first use of the trademark in connection with goods specified in the application (if used); (viii) The date of applicant's first use of the trademark in connection with goods specified in the application in interstate commerce (if used); (ix) The manner in which the mark is used on or in connection with the particular goods specified.
__ Until recently, a trademark application could not be filed until the trademark was first used in interstate commerce. In November 1989, the PTO began allowing applications to register trademarks which were not yet used, but which the applicant intended to use. In other words, the application may be filed, but the trademark will not be registered until it is used in interstate commerce. Once the trademark is registered, however, the applicant's rights in the trademark will date back to the application date.
__ The fees charged for registering a trademark depend on the number of classes of goods/services on which the trademark is used.
__ A trademark registration can last forever, but an affidavit of continued use must be filed in the sixth year after registration and the registration must be renewed after 20 years.
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Trademark Infringement
The test for trademark infringement is whether or not the accused infringer's use is likely to cause confusion, to cause mistake, or to deceive. The type of goods involved is important. Cadillac cars and Cadillac dog food coexist without any confusion, mistake or deception. Moreover, a tradename can infringe a trademark. If I call my company the Kleenex Corp., I might be infringing Kimberly-Clark's trademark rights in the Kleenex trademark.



©1990
THOMAS A. GALLAGHER, ESQ.
Registered Patent Attorney
30-605 NEWPORT PARKWAY JERSEY CITY NJ 07310
TELEPHONE: 201-653-4269 FAX: 201-653-4364
TELEX: 6504023049 MCI MAIL: 402-3049
The above is not intended to be legal advice, but is merely informative of the copyright laws. Anyone interested in obtaining information about copyright protection should seek the advice of a qualified attorney.

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