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How soon can I start using a trademark?

By: Bill Wortman

 

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What is the quickest way to file a trademark?  How soon can I start using a trademark?

 
Answer: Trademark registration. We do not know what you are attempting to trademark, but trademark protection is generally available for business names (entity, product, domain, etc), logos, slogans and some design elements; however, trademark protection is only granted when the names, logos, slogans and design elements identify the source of the goods or services and distinguish them from the competition. Also, first use, grandfather, trademark, and other laws can affect the legal use of a name, logo or slogan and potential infringement issues; therefore, the trademark registration process typically begins with a trademark search to identify any possible infringement issues with similar or conflicting names, logos or slogans.
 
Trademarks can be registered at the federal or state level.  Generally speaking, you file a federal trademark for national or other broad legal protection of a business or product name, logo or slogan, but in either case the search and registration process takes a period of time.
 
Whether intellectual property protection for business and product names and logos is important to a business depends upon several factors including: the business advantage of a new product or service, importance of the business, brand or trade name to the marketing effort, and the size (city, state, regional, national) of the business’ market. While some protection exists without registration, such as a copyright, you need to register for protection of other intellectual properties and generally to defend your property rights in court, including copyrights. You can search and obtain a trademark or copyright yourself, hire a professional, or use a lawyer. In either case, you should become familiar with the terminology and the process. You can review the following U.S. Patent and Trademark Office and state websites for useful trademark information, search and registration tools, and filing fees:
 
Federal:

 
General discussions:

Trademarks registered at the federal and state level can be searched through federal and state trademark databases, but a search of registered trademarks is generally not enough to confirm that a business name, logo or slogan is available for commercial purposes. In addition to searches of registered trademarks, a search of common law or unregistered trademarks, which are also legally protected, is typically necessary. Common law searches are conducted through various sources, such as the Internet, local Yellow Pages and, for business names, county or state level business entity and fictitious name databases. While this can be a time consuming process, under common law, the first use of a name, logo or slogan for commercial purposes entitles the user to certain rights that could affect your use of the name, logo or slogan.
 
While you can conduct a trademark search on your own, you may ultimately need the assistance of a local lawyer to determine the commercial availability of your business name, logo or slogan, for help in conducting your search, or clarification of similar or conflicting names, logos or slogans and infringement issues.
 
Using trademarks: Generally speaking, you can begin using a trademark when you determine that it is unique and does not infringe on an existing trademark.
 
Must I register my trademark?
 
No. You can establish rights in a mark based on use of the mark in commerce, without a registration. However, owning a federal trademark registration on the Principal Register provides several important benefits.
 
Do federal regulations govern the use of the designations “TM” or “SM” or
the ® symbol?
 
If you claim rights to use a mark, you may use the “TM” (trademark) or “SM” (service mark) designation to alert the public to your claim of a “common-law” mark.  No registration is necessary to use a “TM” or “SM” symbol and you may continue to use these symbols even if the USPTO refuses to register your mark.  Those symbols put people on notice that you claim rights in the mark, although common law doesn’t give you all the rights and benefits of federal registration.  
 
You may only use the federal registration symbol “®” after the USPTO actually registers a mark, not while an application is pending.  And it may only be used on or in connection with the goods/services listed in the federal trademark registration and while the registration is still alive (you may not continue to use it if you don’t maintain the registration or it expires).  Although there are no specific requirements on where the symbol should be placed relative to the mark, most businesses use the symbol in the upper right corner of the mark. Note: Because several foreign countries use “®” to indicate that a mark is registered in that country, use of the symbol by the holder of a foreign registration may be proper”:

Published: September 5, 2013
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Bill Wortman

As the Chief Business Consultant at BizCoachingOnDemand.com, Bill has over 40 years of business experience. He's held multiple executive-level positions and fulfilled the role of CFO at large, publicly-held (NYSE, NASDAQA, and AMEX) corporations. In addition, he's also been an owner of several successful private ventures in real estate and in the automotive industry.

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