Since ancient times, individuals and businesses have sought to protect their rights to the products they sell on the market. As free trade continues to expand around the world, it is becoming increasingly vital for entrepreneurs to assert and maintain credit for these products. Trademarks allow people and companies to claim ownership of the goods they produce, as well as claim the brand names, catch phrases, and logos they create to accompany their goods. Trademarks also create brand awareness and customer loyalty by reminding customers of the source of the goods they choose. Before obtaining a trademark, any party involved in commercial business should be aware of the two types of trademarks available and decide which type is the best fit. Trademark owners should also know what they can do to maintain their trademarks and the amount of protection they can expect if another party tries to infringe upon their rights. In addition, producers and consumers should both be aware of what sets a trademark apart from a copyright or patent.

History

The oldest trademarks are still visible in the caves of Lascaux, France, where Neanderthals painted symbols to declare ownership of individual caverns. Later, craftsmen in ancient Egypt, Greece, and Rome marked their finished goods with distinctive symbols. By the fifteenth century, advances in printing technology were making trademarks increasingly popular in Western Europe. It was not until the Industrial Revolution of the nineteenth century, however, that trademarks rose to a modern level of importance. This was the era in which mass-produced goods became a part of everyday life. Companies began using trademarks universally to not only claim the rights to their products, but to create brand awareness among consumers. National governments also began backing these trademarks; the first trademark laws in the United States were passed in the 1870s. Since then, trademarks and trademark laws have been a fundamental part of commercial activity.

Symbols

In the U.S., the symbols ™ and ® are both used to indicate that an individual or business claims the rights to a particular product, logo, or commercially-used phrase. These symbols must be placed to the right of the product name, logo, or phrase to be authentic. The trademark symbol associated with an item reflects whether or not that item is registered with the U.S. Patent and Trademark Office (USPTO). Items that are registered with the USPTO are designated with the ® symbol, and the people or companies behind them are guaranteed federal protection if other parties try to use the trademark. Items that are not registered with the USPTO do not have federal backing in the case of infringement, but the parties associated with them still clearly communicate ownership when they place the ™ symbol on the goods, graphics, brand names, and catch phrases they produce.

Registration and Maintaining Rights

Individuals and businesses seeking the ® trademark must complete an initial registration process with the USPTO, which can take up to six months. Applicants may also register trademarks in individual states, although the requirements for registering a trademark are different in every state and the trademark would only receive guaranteed protection within the boundaries of that state. USPTO approves trademarks that make a product distinguishable from others and do not bear strong similarities to other existing trademarks. In order to maintain the rights to a trademark, the owner must regularly pay fees and file paperwork. The registering party must also use the trademark in the market. It may do this by displaying the trademark on a product, or by using it with names, logos, and phrases that are related to that product. If the individual or business has not used the registered trademark for a prolonged period of time, usually about five years, the trademark will expire. As a consequence of this expiration, the owner of the trademark will lose rights to it, enabling others to adopt the trademark for themselves. If an unregistered trademark is not used in the market for a prolonged amount of time, its owner can face the same consequences.  Due to the complexity of the U.S. trademark laws, consulting with a trademark attorney is highly recommended.

Enforcing Rights and Infringement

The owners of registered trademarks automatically have an advantage in potential court cases because federal agencies back these trademarks. This federal backing can be particularly helpful when parties in foreign countries copy American owners’ products and associated content. Even without federal backing, however, it is possible for owners of unregistered trademarks to assert their rights in countries like the United States. In the U.S. and some other nations, common law gives certain rights to trademark owners who have not registered their intellectual property with the government. These “goodwill” rights mainly apply to unregistered trademarks that have been in use for many years or are very well-known among consumers. The owners of such trademarks can assert their rights in court if another party tries to enter the market with the same trademark or one that is very similar. Regardless of whether a trademark is registered, parties that infringe upon an existing trademark may become subject to legal action. Infringement includes copying an existing trademark or publishing content tied to that trademark without crediting the owner of the trademark. Companies are allowed to use catch phrases other companies have trademarked, but only in the event that they do not use the phrases as their own slogans. For example, a company will not be sued if it uses the trademarked catch phrase of another company in the context of a product description, but it will most likely be sued if it uses that catch phrase as a headline in an advertisement.

Trademark vs. Copyright vs. Patent

Trademarks are sometimes confused with copyrights or patents. All three of these items are designed to protect intellectual property, but each serves a distinct purpose. Copyrights protect artists and the authors of books, song lyrics, and other written pieces by preventing other parties from depicting the work as their own. Like trademarks, patents protect products; however, patents are always government-sponsored and apply to products that have just been invented or have been dramatically redesigned. Trademarks apply to goods on the market and to the images, slogans, and names that accompany those goods.

Further Information on Trademarks: