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Basic Facts About Registering A Trademark, Part 1
BASIC FACTS ABOUT REGISTERING A TRADEMARK Part 1 of 5   What is a Trademark? A trademark is either a word, phrase, symbol, or design, or combination of words, phrases, symbols or designs, that identifies and distinguishes the source of the goods or services 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. Throughout this booklet the terms 'trademark' and 'mark' are used to refer to both trademarks and service marks, whether they're word marks or other types of marks. Normally, a mark for goods appears on the product or on its packaging, while a service mark appears in advertising for the services. A trademark is different from a copyright or a patent. A copyright protects an original artistic or literary work; a patent protects an invention. For copyright information, call the Library of Congress at (202) 707-3000. Establishing Trademark Rights Trademark rights arise from either (1) actual use of the mark, or (2) the filing of a proper application to register a mark in the Patent and Trademark Office (PTO) stating that the applicant has a bona fide intention to use the mark in commerce regulated by the U.S. Congress. (See below, under 'Types of Applications,' for a discussion of what is meant by the terms 'commerce' and 'use in commerce.') Federal registration 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. 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 in the PTO has the ultimate right to register that mark. The PTO's authority is limited to determining the right to register. The right to use a mark can be more complicated to determine. This is particularly true when two parties have begun use of the same or similar marks without knowledge of one another and neither has a federal registration. Only a court 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 PTO cannot provide advice concerning rights in a mark; only a private attorney can. Unlike copyrights or patents, trademark rights can last indefinitely if the owner continues to use the mark or identify its goods or services. The term of a federal trademark registration is 10 years, with 10-year renewal terms. However, between the fifth and sixth year after the date of initial registration, the registrant must file an affidavit setting forth certain information to keep the registration alive. If no affidavit is filed, the registration is canceled. Types of Applications for Federal Registration An applicant may apply for federal registration in three principle ways: An applicant who has already commenced using a mark in commerce may file based on that (a use application). An applicant who has not yet used the mark may apply based on a bona fide intention to use the mark in commerce (an intent-to-use application). For the purpose of obtaining federal registration, commerce means all commerce that may lawfully be regulated by the U.S. Congress-for example, interstate commerce or commerce between the United States and another country. The use in commerce must be a bona fide use in the ordinary course of trade, and not made merely to reserve a right in a mark. Use of a mark in promotion or advertising before the product or service is actually provided under the mark on a normal commercial scale does not qualify as use in commerce. Use of a mark in purely local commerce within a state also fails to qualify as use in commerce. If an applicant files based on a bona fide intention to use in commerce, the applicant will have to use the mark in commerce and submit an allegation of use to the PTO before the PTO will register the mark (see Part 3). Additionally, under certain international agreements, an applicant from outside the United States may file in the United States based on an application or registration in another country. For information regarding applications based on international agreements, please call the information number provided in Part 2. A U.S. registration provides protection only in the United States and its territories. If the owner of a mark wishes to protect a mark in other countries, the owner must seek protection in each country separately under the relevant laws. The PTO cannot provide information or advice concerning protection in other countries. Interested parties may inquire directly in the relevant country, in its U.S. offices, or through an attorney. Who May File an Application? The application must be filed in the name of the owner of the mark-usually an individual, corporation, or partnership. The owner of a mark controls the nature and quality of the goods or services identified by the mark. See below in the line-by-line instructions for information about who must sign the application and other papers. The owner may submit and prosecute its own application for registration, or may be represented by an attorney. The PTO cannot help select an attorney. Foreign Applicants Applicants not living in the United States must designate in writing the name and address of a domestic representative-a person residing in the United States 'upon whom notices of process may be served for proceedings affecting the mark.' The applicant may do so by submitting a statement that the named person at the address indicated is appointed as the applicant's domestic representative under 1 (e) of the Trademark Act. The applicant must sign this statement. This person will receive all communications from the PTO unless the applicant is represented by an attorney in the United States. Searches for Conflicting Marks An applicant is not required to conduct a search for conflicting marks prior to applying with the PTO. However, some people find it useful. In evaluating an application, an examining attorney conducts a search and notifies the applicant if a conflicting mark is found. The application fee, which covers processing and search costs, will not be refunded even if a conflict is found and the mark can't be registered. To determine whether the two marks conflict, the PTO determines whether there would be 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 as a result of the use of the marks at issue by both parties. The principal factors to be considered in reaching this decision are the similarity of the marks and the commercial relationship between the goods and services identified by the marks. To find a conflict, 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 to determine if a conflicting mark is registered, or is the subject of a pending application, except as just noted, when acting on an application. However, you can get this same type of information in a variety of ways: Perform a search in the PTO public search library, located on the second floor of the South Tower Building, 2900 Crystal Dr., Arlington, VA 22202. Visit a patent and trademark depository library (at locations listed in Part 4). Go to either a private trademark search company or an attorney who deals with trademark law. The libraries in the first two entries have CD-ROMs containing the trademark database of registered and pending marks. The PTO cannot provide advice about possible conflicts between marks. Laws & Rules Governing Federal Registration The federal registration of trademarks is governed by the Trademark Act of 1946, as amended, 15 U.S. C. 1051 et seq.; the Trademark Rules, 37 C.F.R. Part 2; and the Trademark Manual of Examining Procedure (2d. Ed. 1993). Other Types of Applications In addition to trademarks and service marks, the Trademark Act provides for federal registration of other types of marks, such as certification marks, collective trademarks and service marks, and collective membership marks. These are relatively rare. For forms and information regarding registration of these marks, please call the appropriate trademark information number, indicated below. Where to Send Application and Correspondence The application and all other correspondence should be addressed to The Assistant Commissioner for Trademarks 2900 Crystal Drive Arlington, VA 22202-3513 The initial application should be directed to 'Box NEW APP/FEE.' An AMENDMENT TO ALLEGE USE should be directed to 'Attn. AAU.' A STATEMENT OF USE or REQUEST FOR AN EXTENSION OF TIME TO FILE A STATEMENT OF USE should be directed to 'Box ITU/ Fee.' The applicant should indicate his or her company's telephone number on the application form. Once a serial number is assigned to the application, the applicant should refer to the serial number in all written and telephone communications concerning the application. It's advisable to submit a stamped, self-addressed postcard with the application specifically listing each item in the mailing-that is, the written application, the drawing, the fee, and the specimens (if appropriate). The PTO will stamp the filing date and serial number of the application on the postcard to acknowledge receipt. This will help the applicant if any item is later lost or if the applicant wishes to inquire about the application. The PTO will send a separate official notification of the filing date and serial number for every application about two months after receipt. the insurer with a couple of affidavits from our agency about what we’d req...