Trademarks – Top 10 Questions
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Trademark Questions 4 – 6
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Question 4 – How Do You Create a Trademark?

In the United States, as soon as you take a good or service and enter the mark associated with the good or service (i.e. the trademark) into commerce – any channel for buying and/or selling goods or services – you’ve created a common law trademark. In other words, trademarks are created once the mark associated with the good or service enters commerce.

So, you do not need to file for state or federal registration to create a viable trademark. However, it behooves nearly all to gain federal registration on their trademarks to gain a significant amount of protections (Read Question 9 for more details on the benefits of federal trademark registration).

Question 5 – What Cannot Be Protected by a Trademark?

The general answer is that if something is protected by a copyright or a patent it is generally not protectable by trademark law. However, this is not always the case. Sometimes there is overlap between trademarks, copyrights, and patents. But, as a general rule, as mentioned in Question 1, trademarks are source identifiers that protect goods and services, while copyrights protect works of authorship and patents protect inventions.

Another way to look at this is from the definition of a trademark. As defined in Question 1, a trademark is a legal concept that protects names, symbols, logos, and devices used in connection with goods or services to indicate the source of those goods and services. So, anything other than the definition of a trademark is not protectable by trademark law.

For example, assume you want to set up a company to make fans. Here, a trademark could not protect the process to create a fan – but a patent could. Or a trademark could not protect a sleek brochure to sell the fan – but a copyright could. However, a trademark could protect the name of the fan company listed on the brochure.

Question 6 – How Do I Let Others Know About My Trademark?

You should put others on "notice." This means you should let everyone else know you’ve created the trademark. Once you enter that trademark into commerce the "notice" should include the symbol "™" after the mark. And if you file for and eventually receive registration for your trademark with the United States and Patent Trademark Office (USPTO), you should use the federal registration symbol ® after the mark. Let’s go over an example to illustrate this.

Assume Bradly Smith starts a new chewing gum business that he names Bradley’s Chewing Gum. He wants to trademark the name. As soon as Bradley enters his product into commerce he should put others on "notice" about his trademark. He could do this in the following way: "Bradley’s Chewing Gum ™". The "™" puts others on notice that Bradley is selling and using his gum in commerce – and he intends to maintain the mark for the gum exclusive of everyone else. Later, Bradley decides to file for federal registration with the USPTO. If and when the USPTO grants Bradley federal registration, Bradley should use the federal registration symbol ® after the mark.

Next, we’ll go over copyright questions 7 – 9.

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