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TRADEMARK INFORMATION

WHAT IS A TRADEMARK
TRADEMARK HISTORY
TRADEMARK PURPOSE

WHEN TO USE
A trademark is a name, symbol, or other device identifying a product, legally restricted to the use of the owner or manufacturer.
Trademark, any symbol, such as a word, number, picture, or design, used by manufacturers or merchants to identify their own goods and distinguish them from goods made or sold by others. Thus, a trademark identifies the source of a product and fixes responsibility for its quality. If customers like the goods, the trademark enables them to know what to purchase in the future. If they dislike the product, they will avoid goods with that trademark.

The name of a type of product cannot be a trademark, because every maker of that product is free to use its name. Sony, for example, is a well-known trademark for televisions, radios, and audio equipment, but no one can have trademark rights to the word television or radio. On several occasions, however, words intended by manufacturers to be used as trademarks for new products were instead used by customers to name the products. Such words then lost their legal status as trademarks. Examples include aspirin, cellophane, and escalator.

History
Makers of goods throughout the ages have put their names on things they produced. Some producers devised symbols or pictures to identify and distinguish their products. Items as diverse as medieval swords and ancient Chinese pottery have been imprinted with identifying symbols to enable potential purchasers to trace the origin and determine the quality of the objects. Before the 20th century, trademarks were usually symbols or pictures rather than words, since most people could not read.

As trade increased in the 19th century, legal rights of trademark owners were recognized, and laws prevented other sellers from using a similar mark that could confuse customers as to the source of products. In 1883 a group of nations created the Paris Convention, an international treaty organization that required member countries to recognize trademark rights of foreign producers. The Paris Convention has been revised several times, and most nations are now members. The U.S. Congress first passed a law in 1870 permitting the federal registration of trademarks. The current federal trademark law in the United States, the Lanham Act, was enacted in 1946.

U.S. Trademark Law
Under the common law in each state, anyone who uses a trademark acquires the legal right to prevent others from subsequently using a similar mark. Many states register trademarks to maintain a public record and allow others to search the record before choosing and using a new trademark. In the federal Lanham Act, Congress has provided a nationwide register of marks for trademark owners who participate in interstate or foreign commerce. Although a trademark owner can rely on state common-law rights by merely using its mark, a federal registration provides valuable extra protection. For this reason, many trademark owners federally register their marks.

In the U.S., trademark may not be registered until it has actually been used in interstate commerce, although someone may apply to register a mark based on an intent to use the mark in the future. Use must occur, however, before a registration will be granted. In contrast, the laws in many nations allow a mark to be registered before actual use, although many countries require use within a certain number of years after registration.

Trademarks are federally registered in the U.S. Patent and Trademark Office of the Department of Commerce. When a trademark owner applies for registration, the office will examine the application to see if the mark meets the conditions of federal law. One important condition is that the trademark is not confusingly similar to a mark previously registered or used in the United States. Under a 1996 revision to the law, the owners of famous trademarks may seek to prevent use of similar marks, even if used by unrelated products. On approval of the application, the trademark is published in the official gazette to enable any objections to be heard in an opposition proceeding. If a registration is granted, it lasts for ten years and may be renewed at ten-year intervals for as long as the trademark is still in use. Once a federal registration has been obtained, the owner may give notice by using the symbol next to the trademark.

Anyone who uses a mark so similar to a registered trademark that it is likely to cause customer confusion is an infringer and can be sued in a state or federal court. In deciding whether there is infringement, the court compares the conflicting trademarks as to similarity in sound, appearance, and meaning, and compares the similarity of the goods and services. Other relevant factors include whether the competing parties' goods are sold to similar customers, through similar channels of trade, and the fame of the marks. Unlike patent or copyright infringement, trademark infringement is defined solely by the likely confusion of customers. The usual remedy after a court trial finding trademark infringement is an injunction prohibiting the infringer from using its mark.

A trademark is often a valuable property of a seller or manufacturer, because it is the symbol of the company's goodwill and of its products and services. Thus, a trademark can be sold or assigned when a company and its assets are sold. It can also be licensed to others to use as long as quality control provisions are in effect. Most fast-food outlets, such as Kentucky Fried Chicken, or other franchised businesses are licensed to use the trademark of the parent company.

When can I use the trademark symbols TM, SM and ?
Any time you claim rights in a mark, you may use the "TM" (trademark) or "SM" (service mark) designation to alert the public to your claim, regardless of whether you have filed an application with the USPTO. However, you may use the federal registration symbol "" only after the USPTO actually registers a mark, and not while an application is pending. Also, you may use the registration symbol with the mark only on or in connection with the goods and/or services listed in the federal trademark registration.
 

 
   
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