Fanciful and arbitrary. This is the strongest type of mark, since it’s so unusual that there’s little chance that someone else would independently think up the same mark and start using it in your field. For example, naming a dog food company “Charcoal” would be arbitrary; naming it “Rovalicious” would be fanciful. Suggestive. This is a type of mark that hints at a certain service or product without overtly describing it. For example, naming a t-shirt company “Cotton Candy” would be suggestive. Descriptive. This is considered a weak category, since it’s obvious enough that other people could easily come up with the same name. For example, calling a copy service “Fred’s Copy Service” is too descriptive, and you wouldn’t be able to easily protect it as a trademark. Generic. This is the weakest category, since generic names are widespread and common, and there would be no way to enforce a trademark protection. For example, naming an ice cream company “Ice Creams and Cakes” is too generic.
Start by thinking up search terms related to your name. You’ll want to search the exact name as well as names that are pretty close to your name to make extra sure no one has been using or has registered anything like it in your field. As a general rule, another brand that has a similar sound, appearance or meaning may lead to yours being “confusingly similar”, which would be an infringement. This may be especially true if it is already being used on goods or services related to yours.
Note the type of products or services that are associated with similar names and whether they have a ® or a (™) next to the name —- indicating a proprietary claim. If you see your name pop up, or one that is very similar, you may need to come up with a new one to use as your trademark, whether or not you ever want to register it.
The TESS system allows you to use “wildcard” symbols to check for brands that may differ in various ways, such as misspellings that may sound the same as your brand, or with added suffixes or prefixes. You should also check the various state databases of trademarks registered there. The mere fact that a brand is not registered, or that its registration has expired, is not a clear indication that it is safe for you to use, since non-registered brands may also be enforced in state or federal courts. If you find a similar brand has had an application “abandoned” or “canceled”, it may be useful to research more details to understand if yours may suffer the same fate.
Make sure you work with an attorney who has experience in this particular area. Look online or ask for a referral in order to find a trademark attorney. An attorney can be useful whether you believe your brand to be unique or not. Your chances of enforcing your brand or getting it registered as a trademark is higher if you have “done your homework”, and that’s easier to do with the help of an attorney.
You can also obtain the necessary forms by calling the USPTO and having them send you copies. [4] X Trustworthy Source United States Patent and Trademark Office U. S. government agency responsible for registering and protecting patents and trademarks Go to source Many people simply have their trademark attorneys do the necessary searching and online filings.
Classification of your goods and services is an important element of your registration. The USPTO website has links to helpful resource that will assist you in selecting the proper classes and using proper wording to describe your goods or services. The interactive online forms have plentiful links to sources of help. Make sure you attach all requested documents, including a sample of how you are using the brand on your goods or services. If you also want to register the appearance of your logo, as part of the brand, be sure to include an illustration. Many trademarks are primarily “word marks”, providing the broadest protection. If you have not yet used your brand on goods or services in interstate commerce, you may file an application on the basis of an “intent to use”, allowing you several years in which to perfect your claim, once you submit proof of actual use of your brand in commerce.
The application under “intent to use” is more complicated and somewhat more expensive, but does give you national “priority” over others who attempt to file or use a similar brand after your original USPTO filing date. After you submit the application, check the online database to monitor the status of your application. You’ll wait several months for the review process to occur. The USPTO examiners will send you a notice when action has been taken on your application. The USPTO will contact you if there are any errors in your application, and you should respond promptly to all correspondence. It is very common to have minor errors that can be corrected. Some legal issues may, however, terminate your application, and you may have to start over with a different brand. Once your application has been “allowed” because it passes the legal tests to qualify for registration, it will be published for opposition by anyone who may believe they can prove their rights will be damaged by issuance of your registration. If there is no opposition timely filed, or you overcome their objections, and you have submitted proof of actual use in commerce, you will be issued a registration certificate. Note that a foreign applicant may skip the requirement to prove “use in commerce”, based upon one or more exceptions in the US laws and regulations.
To take action against someone using the same or similar mark, start by sending a “cease and desist letter. " Within the letter, inform the other party that they are using a protected trademark and that if they do not stop using the mark you will bring a lawsuit against them. If they continue to use the mark despite your letter, you can sue them in state or federal court to stop the improper use. [6] X Research source Ask an intellectual property attorney if you have any questions about filing a lawsuit. The USPTO will generally reject later applications by others for registration of brands similar to yours, as long as you continue to pay the fees necessary to maintain your USPTO registration. Fees are due in year 5 and year 9, to avoid cancellation. Even if your registration is refused or later canceled, you may still be able to enforce your brand in state or federal courts, depending upon why it was refused or canceled. Under US laws, trademark registration is completely optional, as a condition of enforcement, unlike copyright.
Although you do not need to register in order to have a copyright, a registered copyright provides legal evidence of your ownership claim and enters your work into the public record. You are not able to file an infringement suit in US federal court if you don’t have a registered copyright, unless your claim is based upon a foreign copyright.
Complete an application form with the U. S. Copyright Office[9] X Trustworthy Source United States Copyright Office Part of the Library of Congress, responsible for maintaining copyright records Go to source Submit a nonrefundable filing fee Supply a “deposit” copy of your work to the Copyright Office (i. e. , an online upload or an approved form of “hard” copy).
As with trademarks, it is up to the owner of a copyright to monitor for misuse by others and to take action to stop them, as necessary.
