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A Trademark Primer

Thursday, April 26, 2007

Trademark Basics: What's in a name?

Most people understand that a trademark is a used to distinguish one producer's goods from others. A primary goal of trademark law is to avoid confusion in the marketplace. That is why one trademark should not be confusingly similar in sound, appearance and/or meaning to another trademark used for the same or similar goods and services. A "trademark" is used for the sale of goods. A "service mark" pertains to the sale of services.

What is a trademark or service mark?

  • A trademark is a word, phrase, symbol or design, or a combination of words, phrases, symbols or designs, that identifies and distinguishes the source of the goods of one party from those of others.
  • A service mark is the same as a trademark, except that it identifies and distinguishes the source of a service rather than a product.

How are trademark rights established?

You can establish rights in a mark based on legitimate use of the mark. However, owning a federal trademark registration on the Principal Register provides several advantages, e.g.,

  • constructive notice to the public of the registrant's claim of ownership of the mark;
  • a legal presumption of the registrant's ownership of the mark and the registrant's exclusive right to use the mark nationwide on or in connection with the goods and/or services listed in the registration;
  • the ability to bring an action concerning the mark in federal court;
  • the use of the U.S registration as a basis to obtain registration in foreign countries; and
  • the ability to file the U.S. registration with the U.S. Customs Service to prevent importation of infringing foreign goods.


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