How Trademark Rights are Obtained in Law

How Trademark Rights are Obtained in Law (Article 9)

Businesses that adopt a trademark as an identifiable sign, symbol or logo to distinguish their products and services can protect the exclusivity of that mark by registering the trademark with the U.S. Patent and Trademark Office (USPTO). Business entities must submit their trademarks for formal registration in order to establish the presumption of ownership and pursue future actions for trademark infringement.

The registration process is one path toward acquiring trademark rights. Trademark rights are actually obtained either by being the first entity to register the mark with the USPTO (as noted above) or by being the first entity to use that particular mark in commerce. Trademarks rights are therefore created as a consequence of the employment of the trademark. The use of the mark puts the public on notice that the owner is asserting its rights to that mark and simultaneously discourages other entities from claiming ownership of a similar mark for comparable goods or services in the same industry. State and federal governments do not regulate the use of the TM or SM symbols (trademarks for goods, service marks for services). In contrast, the circle-R symbol is reserved for trademarks that have been formally registered with the USPTO and are governed by federal law.

Once the trademark owner obtains his rights in a distinctive mark, he must ensure that the trademark remains in use and appears conspicuously and regularly on the goods and services it intends to identify as provided by the business. If the business does not currently offer its good and services or has no intention of using the trademark in the near future to identify the company as the source of the goods and services, then it is not an enforceable trademark and cannot be protected as such.

Despite the common law protections available for trademarks, businesses that place a high value on developing an identity among their customer base would benefit from officially registering their trademarks.  Leon E. Jew is an experienced intellectual property attorney with broad experience in helping businesses assert and protect their trademark in an efficient and cost-effective manner. Contact Jew & Associates at (925) 463-3288 or visit Jew & Associates online for more information.