What is a Trademark?

To entrepreneurs, few things are more important than creating a thriving business and protecting their assets. One way that entrepreneurs seek to protect their assets is by obtaining a federal trademark registration for their business name and/or logo.

A trademark is any word, name symbol, device, slogan package design, or combination of these that identifies a specific product and distinguishes it from others in the marketplace. Federal trademark registration can be acquired for both goods and services. Trademarks for services are called services marks. Trademarks are source identifiers that assist consumers in their purchasing decisions. For example, when a garment has a swoosh stitched onto it, customers make the safe assumption that the garment is a Nike product. Similarly, when someone is on a road trip in search of food and the golden arches appear in the distance they can be sure that a McDonalds is nearby.

In essence, a trademark is a device that is used to inform consumers of the source of a product. Trademark law is the body of law that allows trademark owners to protect their assets and product reputation. Essentially, trademark law serves two purposes. One purpose is to protect consumers from being confused or deceived about the source of the goods or services in the marketplace. The second purpose is to encourage merchants to stand behind their trademarks.

Federal trademark registration can be obtained by submitting an application with the United States Patent and Trademark Office (USPTO). To be granted federal trademark registration, certain criteria must be met first. To qualify for federal registration, the trademark must be used to identify the source of the goods or services and the trademark must be “used in commerce”. A trademark is used in commerce if there has been a sale or business transaction that took place in interstate commerce (across two or more states). However, a service mark that is only in one state (intrastate) may be deemed to have been used in interstate commerce if the service provider has interstate clientele. Furthermore, a trademark owner who has not used their mark commerece may file an intent to use application with the USPTO. However, the trademark will not be registerable until the mark is used in commerce.  

If a trademark identifies the source of the goods or service and is used in commerce, that does not mean that the trademark will automatically be granted federal trademark registration. If the trademark seeking registration poses a likelihood of confusion to previously registered federal trademarks, the mark may not receive federal registration. It is for this reason, that it may be beneficial to hire a trademark attorney. A trademark attorney can conduct a thorough trademark search to see what issues, if any, a trademark may face in acquiring federal registration. A trademark attorney can help clarify the overall federal trademark registration process.