Intellectual Property 8
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I'm only going to sell to businesses in my state. Do I have to do a national name search, or can I just do a search of local business names?
If you are only going to be using your mark locally and won't be investing a lot of money in name recognition, check federal trademark registrations and search locally. Search of Yellow Pages listings, county and state business name listings, and ads for products or services similar to what you sell will probably be sufficient to tell you if there are companies marketing products or services in your area with confusingly similar names or logos. Be aware, however, that if your name should conflict with similar products sold nationally or with a federal trademark registration, you could be forced to stop using your name if theirs existed first. Similarly, if you later expand to other geographic regions and into international markets you might run into name conflicts you didn't discover on a local search.
When should I search a wider geographic area and how do I do it?
Your best bet for doing a national and international search is to hire an intellectual property attorney or a trademark search firm or information broker familiar with doing trademark searches to search for you. If you want to do the search yourself, or do a preliminary search before retaining an attorney, several electronic databases will simplify the search process. The U.S. Patent and Trademark Office has a web site that contains a database of federal trademark registrations and applications at http://www.uspto.gov. Note that this database is not updated frequently, so it may need to be supplemented by a search in a fee-for-service database as well. Since not all trademarks are registered, it's a good idea to search other directories and databases. Similar information is available using various web search engines such as Google, A9, Yahoo, and AskJeeves. Yellow Pages and industry directories available in public libraries are valuable search tools, too. The Patent and Trademark Office in Arlington, VA has a search library that is open to the public. In addition, public and university libraries throughout the country have been designated patent and trademark depository libraries. These libraries have copies of patents and federal trademark records you can search. To get information about the patent and trademark depository libraries, call the Patent and Trademark Office at (800) 786-9199 or (703) 308-4357, or from the web site at http://www.uspto.gov/main/contacts.htm
If I hire an intellectual property attorney or trademark search company to do the search, and they don't find anything similar, can my trademark be challenged?
Yes, your mark, even once it is registered, could be challenged as being merely descriptive for up to 5 years. Additionally, while an attorney or search firm is likely to do a more extensive and knowledgeable search than you would on your own, there is no guarantee that they will turn up all unregistered uses of your mark. Your mark, even after it is registered, could always be challenged by a prior user of the mark. If your mark starts to be used as a general term to describe a class of products, you can lose your rights to it as well.
What does it cost to register a trademark?
The federal filing fee for registering a trademark is $ 335, for each class of goods or services covered in the application. If you have an intellectual property attorney do the search for you and prepare the applications, you can plan on paying an additional $700 to $2,500 in addition to the filing fee, depending on the extent of the searches done, the results of the searches, the amount of time it takes to write a response to any Trademark Office correspondence, and the attorney you retain. Be sure you ask about fees in advance if budget is a major consideration.
Must I have an attorney to register a trademark?
No, you don't need an attorney to register your trademark. Depending on your plans for the business or product, it may be advisable, however. The extra fees buy you better searches (unless you happen to be an expert at electronic searches and other search techniques) as well as the attorney's expert judgment on whether or not the mark could be considered confusingly similar to others in use for the kind of product or service you sell. Whether retaining an attorney or registering your trademark are worthwhile at all will depend on your budget and plans for what you sell.
I have a trademark I want to use, but I’m not ready to start the business. Is there a way I can keep others from using the mark?
Yes. A 1989 amendment in the trademark law allows you to apply to register a trademark you intend to use by filing a special form and paying a $335 fee, for each class of goods or services covered by the application. When do I use the ™ symbol and when do I use the ®?
If you are claiming trademark rights and haven't yet completed the process of federally registering the trademark, you would use the symbol ™ to denote your claim to a trademark or SM to denote a service mark. Once registration is granted you use the symbol ® to denote the registered trademark.
How do I protect my trademark?
To protect the trademark you have to continue using it, and you have to keep it from becoming a generic term to describe a class of products. To maintain the distinction, your mark should be used as an adjective, as in Band-Aid adhesive bandages or WordSmith writing services. To further protect your mark, you should make sure it is always printed in the same way and that your trademark notice is used at least once in each printed piece containing your mark.
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