Because much of COPYSEARCH Worldwide's focus is oriented toward Trademark, the following information answers Frequently Asked Questions about the Trademark process. For more information about other areas of "Intellectual Property" (including Trademark), please visit/click the pages of interest (above) for more detail and/or to begin obtaining such protection.
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BASIC FACTS ABOUT TRADEMARKS
The following information is derived from the U.S.Department of Commerce, Patent and Trademark Office (USPTO or PTO), publication entitled Basic Facts About Trademarks, which you may review herein or request from COPYSEARCH Worldwide at 1-800-296-9080 at no cost to you.
What is a Trademark?
A Trademark is a word, phrase, symbol or design, or combination of words, phrases, symbols or designs, which identifies and distinguishes the source of the goods or services of one party from those of others. More simply stated, a Trademark (or symbol "TM") is your business (or product) name and/or logo that distinguishes you from your business competitors, drawing consumers to you and rewarding you for your efforts.
A Service Mark (or symbol "SM") is the same as a trademark, except that it identifies and distinguishes the source of a service rather than an product. In the following literature, the terms "trademark" and "mark" are used to refer to both trademarks and service marks, whether they are word marks alone or other types of marks (such as a logo). Normally, a Trademark is for tangible goods and appears on the product, or on the product packaging or labeling, while a Service Mark is for services that are being supplied and appears in advertising or other promotion for these services.
A Trademark is different from a copyright or a patent (see FAQ, above). A copyright protects an original artistic or literary work, whereas a patent protects an invention. For further Copyright Information, please call the Library of Congress Copyright Office at 202-707-3000.
How Do I Establish Trademark Rights?
Trademark rights arise from either 1) actual use of the mark in commerce, or 2) the filing of a proper application to register application to register a mark in the Patent and Trademark Office (USPTO) stating the the applicant has a bona fide intention-to-use the mark in commerce. (The terms "commerce" and "use in commerce" are specialized terms, usually meaning interstate commerce that can be regulated by the U.S. Congress; please see below).
Federal registration with the USPTO is not required to establish rights in a mark, nor is it required to begin use of a mark. However, Federal registration can secure benefits beyond the rights acquired by merely using a mark. For example, the owner of a Federal registration is presumed to be the owner of the mark for the goods and services specified in the registration, and to be entitled to use the mark nationwide. This presumption of ownership thus shifts the burden of proof, and necessitates that non-registrants Oppose an application in a timely fashion or potentially forever lose their rights.
There are two related but distinct types of rights in a mark: the right to register and the right to use.
Generally, the first party who either uses a mark in commerce or files an application with the USPTO has the ultimate right to register that mark.
The USPTO's authority is limited to determining the right to register. This is particularly true when two or more parties have begun use of the same or similar marks without knowledge of one another and neither has a Federal registration.
Only a court of law can render a decision about the right to use, such as issuing an injunction or awarding damages for infringement. it should be noted that a Federal registration can provide significant advantages to a party involved in a court proceeding. The USPTO cannot provide advice concerning rights in a mark; only a private attorney or consultant like COPYSEARCH can provide such advice.
Do I need to SEARCH for conflicting marks?
An applicant is not required to conduct a search for conflicting marks prior to applying with the USPTO. However, some people find it useful, especially due to the length of time it takes for the PTO to evaluate an application (12-16 months or more). Most businesspeople simply cannot afford to wait that length of time before entering the market. Thus, while not guaranteed, the "homework" of a Trademark Search can usually provide a reasonable level of comfort from the beginning of the process rather than at the end.
The PTO does not conduct searches unless evaluating an application.
In evaluating an application, a PTO Examining Attorney will conduct a Trademark Search of PTO records, and will notify the applicant if a conflicting mark is found, but the PTO doesn't conduct searches unless you pay the Non-Refundable application fee.
The application fee of $325 will not be refunded by the USPTO if a conflict is found and/or the mark cannot be registered!!
THE LENGTH OF TIME INVOLVED AND THE NON-REFUNDABLE FEE ARE VERY STRONG ARGUMENTS IN FAVOR OF SEARCHING FIRST
The USPTO Test for Conflicts
To evaluate whether there is a conflict between two marks, the USPTO determines whether there would be a "likelihood of confusion," that is, whether relevant consumers would be likely to associate the goods or services of one party with those of the other party should both parties use their marks simultaneously in commerce. The principal factors to be considered in reaching this decision are 1) the similarity of the marks, and 2) the commercial relationship between the goods or services (e.g., are they in the same "industry?"). To find a conflict (and refuse your application), the marks need not be identical, and the goods and services do not have to be the same!
The PTO does not conduct searches for the public, except when evaluating an application.However, there are a variety of ways to obtain search information. First, the applicant may perform a search in the USPTO public search library, located in the Washington, DC, area. Out of town applicants may visit a Patent and Trademark Office Depository Library if one is located conveniently to where you live or work.
Either a private trademark attorney or a private trademark search company like COPYSEARCH Worldwide can provide Trademark Search and Registration information to help AVOID possible conflicts to your successful registration.
COPYSEARCH Worldwide ® offers FAST, reasonably-priced search results AND, unlike many of our competitors, we can help you FILE YOUR TRADEMARK !
Please call one of our knowledgeable staff for assistance at 1-800-296-9080, or visit the e*SEARCH page of this site to BEGIN your searching NOW !
OR you may fax us at 1-866-4FAX4TM (432-9486) or email us at email@example.com.
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