A trademark is a brand identification for a product or service, the latter technically called a "service mark." The mark can be written text, text in a particular stylized form or a graphic symbol. Company names and products are often registered with the U.S. Patent & Trademark Organization (USPTO) to help ensure their legal usage. Every name of a product is a trademark of its respective organization. If a company creates a name for its product and continues to use it, it is a de facto trademark whether or not it is registered. Among other reasons, registration serves to officially document how long a name has been in use.
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There are two primary ways in which a U.S. applicant can apply to register his or her trademark with the PTO, depending on whether or not the mark has already been used in commerce. An applicant who has already begun using the trademark in commerce may file with the PTO based on that use. This is commonly known as a "Use" application. If an applicant has not yet used the trademark in question in commerce, but has an honest intention to do so, he or she may file an "Intent-to-Use" application with the PTO. A third option, which can only be used by applicants from outside the United States, allows the applicant to file in the United States based on an application or registration made in another country.
Even if the PTO grants an applicant a trademark registration, however, business experts warn that such registration only provides protection to the owner in the United States and its territories. "If the owner of a mark wishes to protect a mark in other countries, the owner must seek protection in each country separately under the relevant laws," warned the PTO in its Basic Facts About Registering a Trademark. "The PTO cannot provide information or advice concerning protection in other countries." In todays business climate, it is essential for businesses to protect their brand.
The owner of a registered trademark may commence legal proceedings for trademark infringement to prevent unauthorized use of that trademark. However, registration is not required. The owner of a common law trademark may also file suit, but an unregistered mark may be protectable only within the geographical area within which it has been used or in geographical areas into which it may be reasonably expected to expand.
Trademark rights to an identifying word, phrase, symbol, design, sound, or color can be secured either by actually using the mark in commerce or by registering the mark with the Trademark Office, a division of the Patent and Trademark Office (PTO). "Federal registration [with the PTO] is not required to establish rights in a mark, nor is it required to begin use of a mark," noted the PTO in its booklet, Basic Facts About Registering a Trademark.
"However, federal registration can secure benefits beyond therights acquired by merely using a mark.