A trademark includes any word, name, symbol, device, or any combination thereof, used, or intended to be used, in commerce to identify and distinguish the goods of one manufacturer or seller from goods manufactured or sold by others and to indicate the source of the goods. A service mark is any word, name, symbol, device, or any combination thereof, used, or intended to be used, in commerce, to identify and distinguish the services of one provider from services provided by others, and to indicate the source of the services.
Ownership is established through a word, name, symbol, or device in commerce. State protection is available for qualifying words, names, symbols, or devices used in intrastate commerce. Federal protection is available for qualifying words, names, symbols, or devices used in interstate commerce.
For federal registration, advertising service in interstate commerce satisfies the use requirement. At the same time, products must generally be shipped in interstate commerce bearing or packaging bearing, the trademark to satisfy the use requirement.
A generic source identifier uses the general name something is called and is not afforded protection under United States trademark law. Aside from the general name something is called, using nouns, phonetic equivalents, misspellings, adjectives, abbreviations, and equivalent foreign words are all examples of a generic source identifiers.
A descriptive source identifier conveys an immediate idea of the ingredients, qualities, or characteristics of goods or services. It may provide protection only under United States trademark law if the source identifier has acquired secondary meaning. Secondary meaning is that an otherwise descriptive source identifier has developed the attributes of a trademark in the mind of consumers as a single source for the goods or services.
A suggestive source identifier requires imagination, thought, and perception to conclude the ingredients, qualities, or characteristics of goods or services. A suggestive source identifier may be afforded trademark protection and registration with little proof of secondary meaning.
An arbitrary or fanciful source identifier has no apparent connection between the source identifier and the goods and services sold under the source identifier, and as such, may have protection under United States trademark law.
Protection of trade dress requires the product design or packaging have acquired secondary meaning to consumers; the features of the product design or packaging are non-functional.
The following is a list of some of the source identifiers that may otherwise qualify for United States trademark protection, but are not capable of federal registration:
- Immoral or scandalous identifiers;
- Deceptive and deceptively misdescriptive identifiers;
- Primarily geographically descriptive or deceptively misdescriptive identifiers;
- Mere surnames used as identifiers;
- Confusing identifiers;
- An identifier in prior use and unabandoned;
- A functional identifier;
- An identifier consisting of the flags or coat of arms of the United States, any state, or foreign nation; or
- An identifier trademark consisting of the name, portrait, or signature of a living individual without the consent of the individual or if the name, signature, or portrait of a deceased President of the United States, during the life of his widow, except by the written consent of the widow.
Once established, trademark rights continue indefinitely if the owner of the trademark does not abandon the trademark and the trademark does not become generic. If a trademark is not used for three consecutive years, the trademark is abandoned, and another person or entity may claim the exclusive right to use the trademark.
Filing a federal trademark application with the United States Patent and Trademark Office assumes a filing in one international class based upon actual use in commerce using the TEAS Plus form and evidence of use available at the time of filing. Filing a federal trademark application with the United States Patent and Trademark Office assumes a filing in one international class based upon the intent to use the trademark in commerce using the TEAS Plus form and evidence of use filed within six (6) months of Notice of Allowance. Filings not qualifying for TEAS Plus or TEAS Reduced Fee form applications subject to extra filing fees. Trademark searches, responses to office actions, extensions, and renewals at hourly rates plus third-party search costs or government filing fees, respectively. More complex trademark applications available by quotation.