Trademarks

Trademarks

A trademark (“mark”) is a word, a design, or a combination of the two that signifies to the public the source of the goods or services being offered to the public under that mark. Trademarks are a feature of the common law that originated in England before 1776, and that exists throughout the United States today. Under the common law, a trademark can be acquired simply by being used to designate the source of a good or service in a manner that does not cause confusion of the public. A paramount feature of a trademark is that the owner of the trademark must control the quality of goods or services offered under the mark.

A federal statute called the Lanham Act provides for the registration of trademarks on a federal register. Before a trademark can be registered, it must undergo examination by a trademark examiner, and must be found to meet the legal requirements for registration. Among these is a requirement that the mark may not be confusingly similar to an existing mark.

Registration provides a trademark owner with rights in addition to those available under the common law. Among these are the right to have the mark be effective throughout the United States and the right to have the mark’s registration become incontestable after it has been registered for at least five years. The owner of a registered mark has the right to display the registration symbol ® next to the mark whenever it is used. A trademark owner has the exclusive right to use the mark in connection with the goods or services associated with the mark, and can bring legal action in state or federal courts to enforce that right.

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