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What Does it Mean to ?Trademark? Something?

By Stephanie Robinson

Many business owners seem to have an inaccurate grasp of what it means to acquire trademark rights in a word, phrase, logo or other item capable of serving as a trademark. Usually in the context of a discussion of filing an application to register a trademark with the U.S. Patent & Trademark Office, many practitioners often hear (and some, unfortunately, often say) some derivation of: ?It is time to trademark that slogan.? This inaccurately conveys the sense that all trademark rights in that slogan depend on registration with the USPTO. Not so. It is critical for businesses to remember that, in most cases, they acquire meaningful rights in trademarks as soon as they apply the marks to their goods or use them in connection with their services in commerce. The principal exception to that rule is when other persons or businesses started using the same marks first (or marks that are confusingly similar to them) and, therefore, can claim priority. It is for that reason that it always makes sense to ask an attorney to run or order a trademark screening search ? including U.S. federal, state and international registrations as well as common-law sources like business filings and web searches ? to determine whether and the extent to which a proposed mark may already be used in commerce. Registration is an important step for helping to ensure that trademark rights, once vested through first use, are protectable in court. However, registration is not necessary in order to create an ownership right in those marks, and businesses actually may risk losing rights if they assume ? incorrectly ? they are without remedy for the infringement of an unregistered mark....

Full post as published by Business and Technology Law on February 07, 2011 (boomark / email).