This is the first in a series of trademark filing basics.

What is a trademark or service mark?

So, just what is a trademark or service mark?  Here is a short explanation:

A trademark is a word, phrase, symbol or design, or a combination of words, phrases, symbols or designs, that identifies and distinguishes the source of the goods of one party from those of others.

A service mark is the same as a trademark, except that it identifies and distinguishes the source of a service rather than a product. Throughout this article, the terms “trademark” and “mark” refer to both trademarks and service marks.

Trademarks, patents, and copyright are all different things.  For example, copyright protects artistic or literary works whereas a patent is for protecting inventions.

Is it necessary to register a trademark?

Well not really – you can establish your rights to use a mark based on prior or use, however getting formal registration of your trademark has a number of benefits:,

• it provides a public, clear notice of your ownership and reduces doubt
• it provides a legal presumption of your ownership of the mark and your exclusive right to use it on or in connection with the goods or services listed in its registration
• provides the ability to initiate legal action if there is a breach of your exclusive rights
• supports registration of your trademark in other countries, particularly useful for export purposes
• and the ability to register with the US Customs Service to prevent importation of infringing overseas good

The use of the trademark symbols  TM, SM and ® are different.  Any time you claim rights in a mark, you may use the “TM” (trademark) or “SM” (service mark) designation to alert the public to your claim, regardless of whether you have filed an application for registration of the trademark or service mark  with the USPTO.  However, you may only use the federal registration symbol “®” after the USPTO actually registers a mark, and not while an application is pending.   Note, you can only use the ® symbol in connection with the goods or services you have registered to be associated with the mark.

United States Patent and Trademark Office (USPTO)

The United States Patent and Trademark Office (USPTO) reviews trademark applications for federal registration and determines whether an applicant meets the requirements for federal registration. They  do not decide whether you have the right to use a mark (which differs from the right to register). Even without a registration, you may still use any mark adopted to identify the source of your goods and/or services. Once a registration issues, it is up to the owner of a mark to enforce its rights in the mark based on ownership of a federal registration.

USPTO employees will answer questions about the application process. However, USPTO employees cannot:

• conduct trademark searches for the public;
• comment on the validity of registered marks;
• answer questions on whether a particular mark or type of mark is eligible for trademark registration; or
• offer legal advice or opinions about common law trademark rights, state registrations, or trademark infringement claims.

Trademark Filing

Online trademark filing is encouraged.  Using the Trademark Electronic Application System (TEAS) available at http://www.uspto.gov/teas/index.html, you can file your trademark registration directly over the Internet. Features of the TEAS trademark filing include:

• On-line Help. Hyper-links provide help sections for each of the application fields.
• Validation Function. Helps avoid the possible omission of important information.
• Immediate Reply. The USPTO immediately issues an initial filing receipt via e-mail containing the assigned application serial number and a summary of the submission.
• 24  Hour Availability. TEAS is available 24 hours a day, 7 days a week (except 11 p.m. Saturday to 6 a.m. Sunday), so receipt of a filing date is possible up until midnight EST.

If you do not have Internet access, you can access TEAS at any Patent and Trademark Depository Library (PTDL) throughout the United States. Many public libraries also provide Internet access.

Look for the next in this series.