Trademark Law Information
Trademarks are generally distinctive symbols, pictures, or words that sellers
affix to distinguish and identify the origin of their products. Trademark status
may also be granted to distinctive and unique packaging, color combinations,
building designs, product styles, and overall presentations. It is also possible
to receive trademark status for identification that is not on its face distinct
or unique but which has developed a secondary meaning over time that identifies
it with the product or seller. The owner of a trademark has exclusive right
to use it on the product it was intended to identify and often on related products.
Service-marks receive the same legal protection as trademarks but are meant
to distinguish services rather than products.
In the United States trademarks may be protected by both Federal statute under
the Lanham Act, 15 U.S.C. §§ 1051 - 1127, and states' statutory and/or
common laws. Congress enacted the Lanham Act under its Constitutional grant
of authority to regulate interstate and foreign commerce. See U.S. Constitution,
Article 1, Section 8, Clause 3. A trademark registered under the Lanham Act
has nationwide protection. See § 1115 of the Act.
Under the Lanham Act, a seller applies to register a trademark with the Patent
and Trademark Office. The mark can already be in use or be one that will be
used in the future. See § 1051 of the act. The Office's regulations pertaining
to trademarks are found in Parts 1 - 7 of Title 37 of the Code of Federal Regulations.
If the trademark is initially, approved by an examiner, it is published in the
Official Gazette of the Trademark Office to notify other parties of the pending
approval so that it may be opposed. See §§ 1062 - 1063 of the Act.
An appeals process is available for rejected applications. See §§
1070 - 1071 of the Act.
Under state common law, trademarks are protected as part of the law of unfair
competition. Registration is not required. See Unfair Competition. States' statutory
provisions on trademarks differ but most have adopted a version of the Model
Trademark Bill (MTB) or the Uniform Deceptive Trade Practices Act (UDTPA). The
MTB provides for registration of trademarks while the UDTPA does not.
Further protection of trademarks is provided by the Tariff Act of 1930.
What is a Trademark?
A trademark is a declaration from a government that a brand name, logo or design
is new or distinctive enough to be granted the exclusive ability to market or
represent a company and or their goods or services. A trademark restricts others
from using a similar mark in the granted territories. A Patent is an additional
form of intellectual property that can be protected.
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