What is a Trademark?
A trademark is what protects the things that identify your business and products to the people buying them. A service mark protects your business and services to the people buying them if you are in a service-based industry (rather than a goods based industry).
A trademark or service mark may include the name of your company, product, or service (if the name for your product or service is unique in itself). It may also include any images or symbols. Examples might be a company or product logo, or phrases such as company taglines or mottos. A mark can even include a sound or a pattern of colors that is easily recognizable and unique to your company.
Once you begin to conduct business under your unique company name or use a unique logo, you have the right to use that name and logo.
However, registering your trademark or service mark with the United States Patent and Trademark Office (USPTO) will better protect you from your competitors using your name or logo on to conduct their business.
The Basics of Registered Trademark Symbols
You are probably familiar with at least some of the following symbols: Ⓡ, TM (™) or SM. The consumer public recognizes those symbols as protecting intellectual property that is not to be copied, just as a Ⓒ, the copyright symbol, does for published works of art and literature.
The trademark symbol Ⓡ is what you use for a registered trademark. This means that you have applied for a trademark through the USPTO and they have accepted your application.
If you use the Ⓡ symbol prior to officially receiving the registration for the mark, the government can and probably will revoke your registration, because you have already violated the trademark law (See the
Lanham Act blog for a discussion of trademark law).
If this happens, you have jeopardized your trademark. Your ability to protect your mark will be weakened, if not eliminated altogether. Until your mark is properly registered with the USPTO, in other words, using the Ⓡ symbol is a bad idea.
While you are awaiting your official trademark registration, you may use the TM or SM symbols next to your mark. These are still well-known symbols that indicate that you have a trademark. Bad actors are less likely to use your mark if they see one of those symbols next to it.
When to Share Your Registered Trademark Symbol
As soon as you receive your registered mark from the USPTO, you should begin using it. This ensures that you are protecting your mark. People are programmed to see that trademark symbol and know that it is protected legally and is not allowed to be copied.
You should use the symbol anytime you use the mark that is protected by the registration. Meaning, anytime you use a slogan you have registered, you should put the Ⓡ next to it.
What to Do If Someone Uses Your Registered Trademark
Now you’ve registered your mark and you are properly using your registered trademark symbol. What should you do if you see that someone else is using it?
Ideally, you engaged a
trademark lawyer when you registered the mark. He or she will be able to help you navigate the complicated world of trademark law from the very beginning.
If you obtained the registered trademark without an attorney, however, or if your attorney only does trademark registration and not trademark disputes, then you want to find an attorney with trademark dispute experience for help.
If someone is using your registered trademark, they are engaging in what is called
trademark infringement. Similarly, if someone is using a mark that is close enough to yours that it is likely to cause confusion in the marketplace, that can still be considered trademark infringement. This is where a trademark attorney can help.
Trademark Infringement
Trademark infringement is complex and highly litigious. You will need a trusted professional on your side.
Your attorney can analyze the strength of your mark registration, analyze the way in which your competitor is infringing on your registered trademark and take the appropriate action.
This may first include your attorney sending the infringer or their attorney a cease and desist demand letter. The letter will detail your attorney’s analysis of the trademark infringement. It will also demand that they cease and desist using your mark within a certain reasonable timeframe. This cease and desist letter will often threaten litigation if the infringer continues to use your registered trademark beyond the timeframe given.
When is Litigation Necessary?
Sometimes infringement continues despite the cease and desist letter. In that case, you and your attorney will need to decide on the best next steps. You may need to file a lawsuit with the court to request an injunction against the infringer.
An injunction is when the court orders the person using your trademark to stop using it. This is especially useful if, for instance, you have been economically damaged by the infringement. If you can prove that you have lost business as a direct result of the infringer using your registered trademark, you would also request that the court order the infringer to pay your damages.
Litigation takes a tremendous amount of time, money and energy. Hopefully, you can find a way to resolve the dispute with the person using your registered trademark before a lawsuit is necessary.
This is where finding and hiring the right trademark lawyer is critical. He or she can help strategize the most efficient way to you use your money and resources. A great attorney is a great problem solver. You should have one in your corner.
