Q&A Topic: A Trademark Law Overview
Whether your business is a boutique business, an enterprise business, or something in the middle, you probably have a logo or a phrase that encapsulates your brand identity. It’s important to protect that brand identity—and trademarks can help. This article will explore some questions about trademarks and how they are critical for businesses.
Thomas M. Wilentz
What are trademarks, and how do they work?
A trademark is something unique that identifies the source of a product or service. This can be a word or phrase, a graphic design, or even a sound. For example, consider Lexus™ or Tesla™, which immediately call to mind specific automobile brands. Or imagine the opening credits of “Law & Order” with its “chung chung” opening sound. Universal Studios holds the trademark for that sound.
Why do you need a trademark?
A trademark can help your business build its reputation. When people use a product or service and find the quality to be exemplary, they may look for other products or services by the same company. The trademark allows businesses to associate other goods they produce or services they offer with the initial product or service people enjoyed. In this manner, trademarks work to safeguard businesses and their products or services so that other companies cannot leverage the brand recognition in order to sell their services. A registered trademark also provides greater protection than relying on a common law (unregistered) trademark.
What is trademark clearance, and why does it matter?
When you decide to establish your trademark, you must first ensure nobody else is already using it. A trademark lawyer will verify through the U.S. Patent and Trade Office (USPTO) trademark register that the design you want to trademark is available.
An excellent attorney will also perform a comprehensive trademark search, which includes checking for conflicts with common law marks, to ascertain whether your desired trademark is available. A common law trademark is one that is being used in commerce and is protected intellectual property, even if it is not registered with the USPTO.
Trademark clearance is essential; your business can be sued for using someone else’s registered or common law trademark. A trademark doesn’t even have to be an exact match in order to run into these problems. Speaking with a trademark attorney before spending money on logos and other marketing or business materials can save immense amounts of money in the long run.
How do you get a trademark?
After your trademark attorney completes the trademark clearance, they will help you apply to register your trademark. If your trademark is successfully registered with the USPTO, it gives you the presumptive right to use the trademark throughout the United States. Your attorney can help you apply for international protections as well.
You have your trademark. Now what?
There are three things a trademark attorney will help you with after the trademark is acquired:
- Trademark watching: Monitoring USPTO filings and common law usage to make sure your trademark is not violated by other businesses.
- Trademark review: Keeping the USPTO updated to modifications or revisions to your trademark. Otherwise, the USPTO could determine that you’ve “abandoned” your original trademark.
- Trademark enforcement: If a company or individual violates trademark rights, your attorney can help you take legal action.
It’s never too early to speak with a trademark attorney. To learn more about a trademark you may be considering, contact Trademark Lawyer Thomas M. Wilentz, Attorney at Law, PLLC at (914) 723-0394.
Thomas M. Wilentz is a graduate of Columbia Law School with honors (Harlan Fiske Stone Scholar). He is a member of the American Bar Association, the New York State Bar Association, the New York State Bar Association Intellectual Property Section, and a member in good standing of the bars of New York and New Jersey. Tom has assisted U.S. and international clients ranging from small companies to large multinational corporations in their applications for trademark registration and other trademark matters. Contact his office for a free, no-obligation consultation.
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