What is a trademark?
A trademark is used to identify and distinguish the products derived from one manufacturer or source from products derived from another source.  A trademark may be a word, phrase, symbol, distinctive design or ornamentation, sound or even a color.  Trademarks assist consumers in obtaining goods from a consistent source, and of a consistent quality, which they have come to expect.  Consequently, trademarks tend to prevent consumer confusion, mistake and deception.

What is a service mark?
A service mark identifies services provided for the benefit of another and distinguishes those services from services offered by another provider.  A service mark may be word, phrase, symbol, distinctive design or ornamentation or even a sound.  Service marks assist consumers in obtaining services from a consistent source, and of a consistent quality, which they have come to expect.  Consequently, service marks tend to prevent consumer confusion, mistake and deception.  Sometimes the term "trademark" is used to describe a service mark.

What is a trade name?
A trade name is the name under which a business operates.  Sometimes, trademarks and trade names can be very similar or even identical.  For example, the Coca Cola Company makes a soft drink which is sold under the trademark Coca Cola.

What is trade dress?
Trade dress is the design, packaging and manner of sale of products and services.  The shape of a product, for example, if distinctive and nonfunctional, may be protected as trade dress. An example is the well-known shape of the original Coca Cola bottle.

How do you obtain a trademark?
Trademark rights are obtained by proper use of the mark in commerce to distinguish the products of the trademark owner (or the owner’s licensee) from those of others.  However, a trademark should not be adopted and used unless the trademark owner is reasonably certain that the mark will not be used in a way that is likely to cause confusion with another party's prior (and continuing) use of its own mark.

How can I be reasonably certain that the mark I have selected is available for my use?There is no way to be absolutely certain.  However, a trademark clearance search can be conducted to determine if other parties are using similar marks for similar goods or services.  A search may be used to clear a mark for use before significant advertising costs are incurred in advertising a product or service under a new mark.

What is trademark registration?
Registration is a process by which trademark rights can be significantly enhanced.  The registration process can be begun based on actual use of the mark in commerce or on an intent to use the mark in commerce.  However, if the registration process is begun based on an intent to use the mark, a registration for the mark will not issue until use in commerce is demonstrated.

Registrations are territorial.  Thus a registration for a particular state or country generally confers no benefits outside that state or country.  However, without registration, the rights in a mark are geographically limited to the specific trading areas in which the mark has been used.

Federal registration of a trademark that is used in interstate commerce entitles the owner of the mark to several important benefits: 

1. The owner can bring an action for trademark infringement in federal court.  Furthermore, he can recover profits, damages and the costs of bringing the action from an infringer.

2. A federally registered mark is entitled to nationwide priority, except as against prior users.  In other words, a federally registered mark expands the geographic scope of rights in the mark to the borders of the United States, except for the specific areas in which prior users may have used a similar mark.

3. A federally registered trademark is presumed to be valid, and its ownership and the exclusive right to use the mark in commerce in connection with the goods or services specified in the registration are presumed to reside in the registrant.

4. After five years of continued registered use of a mark, the federal trademark registration for that mark is deemed incontestable.

5. A U.S. application for registration entitles the trademark owner to priority of the U.S. filing date in filing in other Paris Convention countries, if a foreign application to register the same mark for use in connection with the same goods or services is filed within six months of the U.S. filing date.

6. The U.S. Customs Service may exclude articles bearing infringing marks from importation into the United States.

7. A U.S. trademark registration may also provide the basis for extending the owner's trademark protection to the various countries which are signatories of the Madrid Protocol.

When can the trademark registration symbol - ® - be used?
The registration symbol can only be used after the owner of the trademark or service mark has obtained a federal registration for the mark.

Any person who claims rights in a mark may use the symbol "TM" for a trademark or a service mark, or the symbol "SM" for a service mark.

How are trademark and service mark rights maintained?
A trademark is properly used by placing it on the product or on a label or packaging for the product and selling the product in commerce.  A service mark is properly used by placing it on advertising materials that describe the services being offered under the mark.  A mark should always be used to identify the same products and/or services and always in the same way.

To protect trademark rights, it is necessary for the trademark owner to continue to use the mark in the ordinary course of trade.  If such use ceases, the mark may be deemed abandoned, and all rights therein lost.  A temporary suspension of use will not generally constitute abandonment, and in any case, the intent of the trademark owner will be important in determining if abandonment has occurred.  However, nonuse that continues for more than two years is presumed to amount to abandonment.

A mark that is used in print should always be distinguished from the surrounding text.  It should be capitalized, set off with quotation marks, or printed in italics, bold type or a color different from the surrounding text.  Whenever possible, a trademark notice should follow the mark, at least once in each piece of printed material and preferably the first time the mark appears.  Until the mark is registered, the designation “TM” may be used for a trademark.  The symbol “®” should not be used until the mark has been registered with the United States Patent and Trademark Office.

When comprised of words, a trademark should always be used as a proper adjective that describes the generic name of the goods or products with which it is used.  Failure to do so may result in the loss of trademark protection for a mark, and the adoption of the former mark by competitors or others as a generic term.

Such former trademarks as aspirin, cellophane, and escalator were lost because their owners were not consistently careful in using them as adjectives which described the generic name of the products with which they were used. 

If the product to which the trademark is applied is so unique that a commonly accepted generic name does not exist, it may be necessary to create one.  Prudent trademark usage may also suggest that the term “brand” be inserted between the trademark and the generic name, especially if the generic name was created for use in association with the trademark.  Examples of such uses are “Vaseline® brand petroleum jelly”, and “Band-Aid® brand sheer strips”. 

Plural or possessive forms of the mark should not be used, nor should the mark ever be used as a noun, or in a verb sense.  Thus, for example, it is acceptable to refer to a Xerox® copier, but unacceptable to speak of "xeroxing" a letter. 

How long can a trademark be maintained?
Since trademark rights derive from use in commerce, they can be maintained for as long as the trademark is so used. 

A trademark registration generally lasts for ten years, but it can be renewed for successive terms so long as the mark is still being used in commerce.