Trademark Lessons You Don t Want to Learn the Hard Way

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1 Trademark Lessons You Don t Want to Learn the Hard Way

2 Trademark Lesson #1 Not Understanding What Trademarks Are and Why They re Important Typically, a trademark is a word, phrase, logo, symbol, or character that is used in connection with the advertising and sale of products and services. Some very famous trademarks include MCDONALD S, FACEBOOK, the Nike Swoosh, Mickey Mouse, and the Pillsbury Dough Boy. In your lifetime, you will see thousands of trademarks in advertisements, displayed on websites, printed on product packaging, and sometimes even stamped on products themselves. Trademarks are so important because businesses use trademarks to identify and distinguish their products and services from those offered by their competitors. They spend large amounts of time and money developing and implementing their trademarks with the goal of building positive brand recognition and goodwill among consumers like you and me. We then rely on these trademarks to compare different products and services and to make our purchasing decisions. Could you imagine walking down the soda aisle of your local supermarket and trying to find COCA-COLA if there were no trademarks on any of the bottles? We wouldn t be able to figure out which bottles contained COCA-COLA, and which ones contained other dark sodas like PEPSI and DR. PEPPER. In addition, trademarks offer us an assurance of quality and consistency. For instance, when we crack open a can of COCA-COLA, we expect it to taste the same every single time. If you happen to like the taste of COCA-COLA, you would probably buy it again. If not, then you would likely choose to purchase a different beverage in the future. Needless to say, businesses want to create as many positive associations with their trademarks as possible so that more people will be inclined to purchase their products and services rather than those offered by their competitors. Trademarks are the most valuable assets a business will ever own because they embody the reputation and goodwill of the business itself. Trademark Lesson #2 Not Conducting a Comprehensive Federal Trademark Search It is essential that you conduct a trademark search to determine the availability of the trademark for your use in connection with your specific products or services. A trademark search will minimize the risk of you being sued for trademark infringement by someone who has prior rights in a confusingly similar trademark. A federal trademark search is strongly recommended for all businesses because it is inexpensive and will reveal whether anyone owns exclusive nationwide rights in a particular trademark. It also provides the most guidance regarding whether your trademark is eligible for federal registration with the United States Patent and Trademark Office. If the federal trademark search reveals a pending application or 2

3 existing registration for a trademark that is identical or confusingly similar to yours, then you would probably want to consider changing your trademark so as to avoid a potential lawsuit and perhaps having to change your trademark down the road. The good news is that you can conduct a basic trademark search using the Trademark Electronic Search System available on the Trademark Office s website. This is often called a knockout search because it will reveal very obvious conflicts that an experienced trademark attorney would be able to find in a few seconds. However, this cursory search is not a comprehensive trademark search. The results should not be relied upon because this type of search simply cannot uncover all potentially problematic trademarks. Therefore, you should always hire a trademark attorney to perform a comprehensive federal trademark search prior to adopting, using, or attempting to register your trademark. A trademark attorney will efficiently and effectively search the federal trademark records and then issue you a legal opinion informing you of the risks associated with using and registering your trademark. Simply put, a knowledgeable and trustworthy trademark attorney will help provide the security you need for successful clearance and ownership of your trademark. Trademark Lesson #3 Not Understanding What Federal Trademark Registration Does For You Federal trademark registration with the United States Patent and Trademark Office provides you with many valuable benefits and protections. Most importantly, a trademark registration gives you the exclusive nationwide right to use your trademark in connection with your specific products or services. This benefit is critical if you plan to conduct business in more than one state or do substantial business over the Internet. In addition, a registered trademark has the ability to become incontestable. Once a trademark registration achieves incontestable status, the validity and ownership of the trademark cannot be challenged by somebody else. Furthermore, obtaining a federal trademark registration puts the entire world on constructive notice of your exclusive rights in your trademark. The Trademark Office s database is freely available to the general public, so if someone wants to know whether your trademark is federally registered, all that person has to do is perform a search of the Trademark Office s records. Ownership of a federal trademark registration also allows you to use the symbol. The symbol can act as a deterrent to others who may be considering adopting an identical or confusingly similar trademark. A trademark registration also offers you the opportunity to register your trademark with the United States Customs and Border 3

4 Protection, and it can also be used as a basis for expedited registration of your trademark in foreign countries. Finally, a trademark registration is extremely helpful should you ever need to sue another business for trademark infringement, or in the event that you are ever threatened with a trademark infringement lawsuit by somebody else. Trademark Lesson #4 Failing to Consider Working with a Trademark Attorney The truth is that you can file a trademark application yourself. You re not legally required to hire a trademark attorney to prepare and submit your trademark application. The Trademark Office even provides some instructional videos and other information on its website to help people who want to file a trademark application by themselves. But even though you can file a trademark application on your own, there are many reasons to seek the assistance of an experienced and knowledgeable trademark attorney. First, the application form is not as straightforward as it might initially seem. Although some errors are correctable after the trademark application is filed, many are not. If you file a trademark application with an error that can t be corrected, you will lose the few hundred dollars that you paid to the Trademark Office and you will have to file a brand new application. Second, a trademark application filed by a trademark attorney is more likely to be approved by the Trademark Office because the application will be complete and accurate. A trademark attorney will know what questions to ask you to ensure that your trademark application is properly prepared and timely filed. Finally, a trademark attorney will monitor your trademark application on a regular basis and will inform you of important deadlines that will need to be met after your trademark application is filed. Failure to meet these deadlines will result in your trademark application being abandoned by the Trademark Office. Trademark Lesson #5 Not Understanding the Federal Trademark Registration Process The federal trademark registration process is pretty straightforward. Once your trademark application is filed with the Trademark Office, it will be about 3-4 months before the Trademark Office assigns your application to an examining attorney. The examining attorney will review the application for completeness and will analyze whether your trademark falls into any one of the numerous categories of trademarks that are legally prohibited from being federally registered. The examining attorney will also conduct a search of the Trademark Office s records to see whether your trademark 4

5 is likely to cause confusion with another trademark in an application or registration owned by someone else. If the examining attorney has no issues with your trademark application, it will be approved for publication. On the other hand, if the examining attorney rejects your trademark application, you will receive an office action from the Trademark Office explaining why your application wasn t approved. If you are able to fully and successfully overcome the rejection, the examining attorney will approve your application for publication. If not, you may have to consider appealing the rejection to the Trademark Trial and Appeal Board. If nobody opposes your trademark application during the 30 day publication period, the Trademark Office will issue your trademark registration if your mark was in-use at the time you filed your trademark application. If you filed your trademark application on an intent-to-use basis, the Trademark Office will instead issue what is called the Notice of Allowance. You will then have six months to file the Statement of Use, which is a document that proves to the Trademark Office that you are now using your trademark in commerce. If you can t file the Statement of Use within those six months, you can get another six months by filing for an Extension of Time. The Trademark Office will not register your trademark until you file the Statement of Use. Trademark Lesson #6 Not Respecting the Trademark Rights of Others Many people assume that once they have a federal trademark registration, they can never be sued for trademark infringement. Unfortunately, trademark law doesn t quite work that way. Even having a trademark registration does not guarantee that you have the right to use your trademark under all circumstances. In the United States, trademark law is all about priority. Generally speaking, if you were using the trademark first in a particular geographic area, then even somebody with a trademark registration cannot stop you from continuing to use your trademark in that particular area. This is true no matter how old the trademark registration is or whether the trademark registration has become incontestable. The prior user has every right to prevent the owner of the trademark registration from advertising and selling its products or services in the prior user s territory, and the prior user can file a lawsuit for trademark infringement if the owner of the registration ignores the rights of the prior user. As you can see, the trademark law could lead to a very strange situation where the owner of a federal trademark registration could be prohibited from using its trademark throughout the entire United States if a prior user of an unregistered trademark could 5

6 prove that it was using its trademark nationwide before the trademark registration owner applied to register its mark. The bottom line is that while ownership of a federal trademark registration provides many important benefits, it does not necessarily establish who has the right to use a particular trademark in a particular part of the country. Prior users have significant legal protections under the trademark law and can prevent owners of trademark registrations from using their trademarks under certain circumstances. Conducting a comprehensive trademark search before adopting and registering your trademark can help to reduce the chances of this situation happening to you. Trademark Lesson #7 Choosing a Trademark Attorney Based Solely on Location If you are seeking a trademark attorney to assist you with federal trademark search and trademark registration, you can hire any trademark attorney you like no matter where the attorney is located. The option to hire a trademark attorney located outside of your local area is especially beneficial if you live in an expensive metropolitan area like New York, Chicago, or Los Angeles where trademark attorneys tend to charge higher rates. If you live in a smaller community or in a very rural area, there may not be any attorneys who focus their practice of law exclusively on trademark matters. Also, in the event someone opposes your trademark application or attempts to cancel your trademark registration, you are free to work with any trademark attorney who you believe has the knowledge and experience necessary to properly defend such a challenge, regardless of where the attorney is located. The same is true if you ever need to hire a trademark attorney to oppose a trademark application or to cancel a registration owned by someone else. With the availability of and other inexpensive forms of communication, your choice of trademark attorneys has never been greater. Instead of primarily basing your decision on where your trademark attorney is located, you can concentrate on finding one that you feel understands your specific needs and aspirations, and who has the expertise to help you promptly secure valuable protection for your trademarks without spending an arm and a leg. Trademark Lesson #8 Choosing a Weak and Non-Distinctive Trademark Trademarks are categorized by their distinctiveness. The more distinctive your trademark is, the broader scope of protection it receives and the easier it is to register your trademark with the Trademark Office. 6

7 The weakest category of trademarks are descriptive trademarks. Descriptive trademarks immediately describe a feature, quality, or characteristic of the products or services with which they re used. Descriptive trademarks are not inherently distinctive and must acquire secondary meaning in the minds of consumers before they can be federally registered. Trademark attorneys generally advise their clients not to adopt descriptive trademarks because they are initially entitled to only a small amount of protection. The next level up are suggestive trademarks. Suggestive trademarks are extremely popular because they suggest to consumers a favorable feature, quality, or characteristic of the products or services with which they re used. A good example of a suggestive trademark is JAGUAR for sports cars. Suggestive trademarks are considered inherently distinctive and are eligible for federal trademark registration. Above suggestive trademarks on the distinctiveness scale are arbitrary trademarks. Arbitrary marks are also eligible for federal trademark registration and consist of common English language words applied in an unfamiliar manner. Probably the most famous example of an arbitrary mark is APPLE for computers and electronic devices. Obviously, the dictionary definition of apple (a type of fruit) has nothing to do with these types of products. The strongest trademarks are those that are fanciful. Fanciful trademarks are typically comprised of coined terms that have no English language meaning. Some famous fanciful trademarks include KODAK, EXXON, and XEROX. Fanciful trademarks are the most distinctive trademarks and are eligible for federal trademark registration. Owners of fanciful and arbitrary trademarks tend to have fewer infringement issues and are often in a stronger legal position to sue someone for trademark infringement if necessary. Trademark Lesson #9 Choosing the Wrong Trademark Attorney There are a number of things you should look for when choosing a trademark attorney. Although it may sound obvious, you should think twice about hiring a trademark attorney before actually speaking with the attorney on the phone or in person. There are quite a few law firms out there that strongly encourage you to purchase trademark search and trademark registration services through their websites using impersonal web forms and questionnaires. They want you to hand over your credit card information without having even spoken with you about your trademark or your business. Needless to say, you want a trademark attorney who will take the time to fully address the questions and concerns you likely have about the trademark registration process and who will advise you as to whether trademark registration is even appropriate or necessary in your particular case. A one-size-fits-all web form is not a substitute for an in-depth, personal, and confidential legal consultation. 7

8 You may also want to ask how many trademark applications the law firm has filed on behalf of its clients and what percentage of them have actually issued to registration. There are many law firms in the United States that file hundreds of trademark applications every year, but the truth is that only a fraction of these applications ever become trademark registrations. As the old saying goes, it s not quantity that matters, it s quality. You may also want to inquire whether your trademark application will be prepared by a licensed trademark attorney or if the work will be performed by a secretary or paralegal. If the cost of your trademark application seems very low, or if the legal fee is substantially less than the Trademark Office s filing fee, there is a very good chance that a secretary or paralegal is doing the majority of the work and that the trademark attorney is only performing a minor supervisory role. Thank you for reading! Sincerely, Morris E. Turek 8

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