A trademark is a brand. A trademark includes any word, name, symbol, or device (e.g., color or sound), or any combination thereof used to identify and distinguish goods or services from those manufactured or sold by others and to indicate the source of the goods or services. Trademark rights provide the owner with the ability to prevent others from using a trademark that is likely to cause confusion amongst consumers of the owner’s goods or services.
While there are certain protocols or systems under which trademarks can be registered in multiple countries, trademark rights are generally acquired and established at a national level. RKM provides a full range of services related to United States trademarks, described below. RKM also has associate counsel throughout the world that can assist in developing a cohesive global brand strategy.
In the United States, trademark rights are earned only through actual use of a trademark. A trademark is “used” on goods when the mark is placed on a good or its associated packaging or container and the marked goods are sold or transported in interstate commerce. A trademark (or service mark) is used in connection with services when the services are actually provided and the mark is used in the advertising or in connection with the rendering of the services.
Trademark protection can be provided through a registration process, either at the state or federal level, or through common law rights established solely through the use of the trademark. Where a trademark registration is obtained, the trademark rights generally extend throughout the geographic territory of the issuing agency. For example, if a Wisconsin trademark registration is obtained, the registration provides protection throughout the state of Wisconsin, regardless of the geographic extent of use within the state. Likewise, a federal registration obtained from the United States Patent and Trademark Office will provide trademark protection coast-to-coast and in all U.S. territories, even if the mark is used in only a few states. Common law trademark rights extend only so far as the actual market of use. Thus, if no trademark registration is obtained and, for example, goods are advertised and sold only in Minnesota and Florida, then the common law rights afforded to such user would extend only into those markets.
Trademark protection lasts as long as the trademark registration is maintained and the trademark is in actual use. Thus, trademark rights can outlast other forms of intellectual property protection.
Trademark protection can be provided to product and/or product packaging design. This type of protection is called trade dress protection. To establish protectable trade dress, distinctiveness must be established. While product packaging may be inherently distinctive, trade dress protection will extend to product design only upon a demonstration that the product design has acquired a secondary meaning to consumers as an indicator of the source of the product.
RKM can help you protect your brands. Contact an RKM attorney to help you understand how to select and maintain a distinctive brand, and how to keep a watch out for others that may be encroaching on your market.