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Trademark Basics

Steps for a Trademark

Virtually every business could benefit  from a trademark! According to a 2013 report by the USPTO, trademarks cover a broader set of participants in the economy  [than patents] because almost every firm, regardless of size, market, or business strategy, has goodwill to protect. (The USPTO Trademark Case Files Dataset: Descriptions, Lessons, and Insights, January 2013). Studies have shown that brand-association trademarks available to firms increases their financial performance.


Trademarks are any word, term, name, symbol, or device, or any combination thereof  that are used in commerce as brand names, tag lines, slogans, non-functional and distinctive packaging and labeling designs, etc. to indicate the source of a product or service. Only non-functional elements are protected by law as trademark rights. Functional aspects of a product or service are covered under patent law with a limited term of protection whereas trademarks are not limited in term (except by nonuse).

The long potential length of a trademark life is evidenced by the oldest registered trademark for a “SAMSON” logo that was issued in 1884 (U.S. Reg. No. 0011210 for CORDS, LINES, AND ROPE.)

Stronger distinctive trademarks (see below green and to the left) are easier to enforce and to sell to investors. Marks that are merely descriptive can possibly become distinctive enough to register on the Principal Register by acquiring distinctiveness (green arrow shift to the left).

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Stronger distinctive trademarks (see below green and to the left) are easier to enforce and to sell to investors. Marks that are merely descriptive can possibly become distinctive enough to register on the Principal Register by acquiring distinctiveness (green arrow shift to the left).
























Common Law Trademarks

Trademark Rights originate as common law trademark rights by use in commerce as a trademark. Common Law Trademark rights are a collection of rights that originate when an inherently distinctive trademark  that distinguishes one product from another is used to identify the source of a good or service in commerce. (Trademarks that are not inherently distinctive, such as those that are merely descriptive, might acquire a secondary meaning after a period of time if a number of other factors are present, see more below.)

Common law trademark rights (where defined by case law) exist in local geographic areas without registration and may be able to successfully usurp a registered mark in the same geographical area if the alleged common law trademark owner can show prior use (or senior use) of the mark. The Lanham Act provides that a registered mark, even if it has become incontestable, still may be challenged "to the extent, if any, to which the use of a mark registered on the principal register infringes a valid right acquired under the law of any State or Territory by use of a mark or trade name continuing from a date prior to the date of registration under this chapter of such registered mark." 15 U.S.C. 1065 as quoted in Advance Stores Co. Inc. v. Refinishing Spec. Inc., 188 F.3d at 411 (6th Cir., 1999). A challenge to a registered mark by an unregistered mark could be in a USPTO opposition or cancellation or in a state or federal court. See trademarkoppositionprocess.com for more information on oppositions and cancellations.

Common law trademarks do not, however, enjoy the advantages of federal registration (see chart) which include being protected more thoroughly from infringement and counterfeiting trademarks. Marks that do not qualify for federal registration may not qualify for common law protection for the same reasons since the federal laws are based on the same or similar common law principles. Likewise, having a federal registration does not protect a business from being challenged by a common law trademark-USPTO trademark examiners do not examine potential trademarks for potential infringement by state or common law marks. The USPTO only looks at other USPTO federal registrations for potentially conflicting marks.























Unregistered Trademarks

Unregistered trademarks are protected by law under more than just common law (case law) because various state statutes and federal statutes have adopted (codified) the concepts and terminology that were developed in case law. One applicable federal law for unregistered trademarks is 15 USC § 1125(a) of the Lanham Act: False designations of origin, false descriptions, and dilution forbidden (a) Civil action:

(1) Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which—

(A) is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or

(B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities;

shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.


Claims for trademark infringement for unregistered marks require findings that the unregistered marks owned by plaintiff are either inherently distinctive [rather than descriptive] or have acquired a secondary meaning and are likely to be confused with defendants' marks by members of the relevant public. Duncan Mcintosh Co. v. Newport Dunes Marina LLC, 324 F.Supp.2d 1083-1084 (C.D. Cal., 2004) quoting Int'l Jensen, 4 F.3d at 823; Vision Sports, 888 F.2d at 613; California Cooler, Inc. v. Loretto Winery, Ltd., 774 F.2d 1451, 1455 (9th Cir.1985). Without inherent distinctiveness or acquired distinctiveness through secondary meaning, an alleged trademark is not protected by common law. The same lack of common law protection holds true for trademarks that are geographically descriptive or geographically misdescriptive that have not acquired distinctiveness.


In addition, an unregistered mark must actually have been used as a trademark to be protected under trademark law. "[A] plaintiff must show that it has actually used the designation at issue as a trademark"; thus the designation or phrase must be used to "perform[] the trademark function of identifying the source of the merchandise to the customers." Microstrategy Incorp. v. Motorola, 245 F.3d at 341 (4th Cir., 2001) quoting Rock & Roll Hall of Fame v. Gentile Prods., 134 F.3d 749, 753 (6th Cir. 1998). See valid manner examples below or the web site Function As a Mark.com for examples on how a trademark should function.



GEOGRAPHIC RIGHTS FOR UNREGISTERED MARKS ARE LIMITED

 A common law mark (unregistered mark) has geographically limited rights (prior use) against a subsequent user under the Tea Rose/Rectanus doctrine -- the first user of a common law trademark may not oust a later user's good faith use of an infringing mark in a market where the first user's products or services are not sold. Nat'l Ass'n Healthcare Comm. v. Cent. Arkansas Agency, 257 F.3d at 735 (8th Cir., 2001) quoting United Drug Co. v. Theodore Rectanus Co., 248 U.S. 90, 100-01 (1918); Hanover Star Milling Co. v. Metcalf, 240 U.S. 403, 415 (1916).

This prior use right may be enforced through an opposition or cancellation proceeding. See Published for Opposition see also Opposition Steps/Cancellation Steps for more information.


How to Prove Secondary Meaning or Acquired Distinctiveness under Section 2(f)

Secondary meaning is when the consuming public has made a link between an alleged mark and the source of the mark.

The factors considered in determining whether a descriptive mark (not inherently distinctive) has achieved secondary meaning include:

(1) whether actual purchasers of the product bearing the claimed trademark associate the trademark with the producer as evidenced by survey or direct consumer testimony;

(2) the degree and manner of advertising under the claimed trademark;

(3) the length and manner of use of the claimed trademark; and

(4) whether use of the claimed trademark has been exclusive.

Levi Strauss & Co. v. Blue Bell, Inc., 778 F.2d 1352, 1358 (9th Cir.1985).


In In re Soccer Sport Supply Co., 507 F.2d 1400, 1403 n.3, 184 USPQ 345, 348 n.3 (C.C.P.A. 1975), the Court of Customs and Patent Appeals noted as follows:

[T]he judicially developed concept of “secondary meaning,” codified by section 2(f) (15 U.S.C. 1052(f)), relates to descriptive, geographically descriptive, or surname marks which earlier had a primary meaning which did not indicate a single source and were, therefore, unregistrable because of section 2(e) (citation omitted). Additionally, section 2(f) has been applied to permit registration of a mark consisting solely of a design and, therefore, not within the purview of section 2(e).



PLAN FOR A SUCCESSFUL, STRONG TRADEMARK

Verify Whether Your Claimed Trademark Is Trademarkable


1. Verify Inherent Strength  Does each trademark consist of inherently distinctive element(s) that can be claimed for exclusive use?


Marks that are merely descriptive (or worse, generic) are hard to register and hard to protect. Section 2(e) refusals are very common refusals. Whether a trademark is merely descriptive depends on the goods and services description. Facts Matter.


2. Verify Right to Use  Does the trademark have a likelihood of confusion with prior-used trademarks (registered or unregistered)?


Section 2(d) refusals are very common refusals. Facts Matter.


3. Verify Right to Register  Does the trademark meet the USPTO rules of registration? (Does not have any grounds for refusal?)


4. Verify Specimen  Is the trademark used as a trademark or service mark in the specimen?


Specimen refusals are very common refusals. The right type of specimen for any particular application depends on what the goods or services are. Facts Matter.


5. Verify Goods and Services ID   Is the goods/services identification definite and accurate? Is the goods/service ID as broad as it should be under the circumstances or will a narrower description distinguish it better?


ID refusals are common too but getting the right description identifies the scope of protection. Too narrow of a description can yield narrow rights. Too broad of a description can result in an unnecessary likelihood of confusion with someone else. Facts Matter.


Call us at 1-651-500-7590 for a Strong Trademark. A Strong Trademark is Not Just a tool to increase sales to customers–it is also easier to sell to your investors & licensees. See Why Should I Have A Trademark Attorney Answer My Office Action if you have already applied and been refused.



Not Just Patents ® and Aim Higher® are federally registered trademarks of Not Just Patents LLC for Legal Services.




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Trademark Rights

Principal Register

Supplemental

Register

Common Law

Bring infringement suit in federal court based on the federal registration

YES

YES

NO

Can be used by trademark examiner against future applications of confusing similar marks

YES

YES

NO

Mark is easy to find for search reports

YES

YES

NO

Owner can use ® to symbolize federal registration

YES

YES

NO

Incontestability of mark after 5 years

YES

NO

NO

Statutory presumption of validity

YES

NO

NO

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Statutory presumption of ownership

YES

NO

NO

Statutory presumption of distinctiveness or inherently distinctive

YES

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NO

NO

Statutory presumption of exclusive right to use the mark in commerce

YES

NO

NO

Can be recorded with US Customs and Border Protection (CBP) to prevent importation of infringing goods

YES

NO

NO

Ability to bring federal criminal charges against traffickers in counterfeits

YES

NO

NO

Use of the U.S. registration as a basis to obtain registration in foreign countries

YES

NO

NO

StepsToATrademark.com


Not Just Patents®

Aim Higher® Facts Matter


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Steps to Trademark Registration Scam Letters Create Valid Mark Examples of Composite or Unitary Marks Use Mark in Commerce Verify Right to Register Identification of Goods and Services

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Specimen Selection & Review
Office Actions Published For Opposition Enforcement/Maintenance Register with US Customs Comparison of Principal & Supplemental Register

Not Just Patents® LLC

PO Box 18716

Minneapolis, MN 55418

1-651-500-7590    

WP@NJP.legal


Call 1-651-500-7590 or email WP@NJP.legal for Responses to Office Actions; File or Defend an Opposition or Cancellation; Trademark Searches and Applications; Send or Respond to Cease and Desist Letters.

For more information from Not Just Patents, see our other pages and sites:      

Is my business name trademarkable? What is Trademark Intensity TMI? How do I build my trademark intensity?

Trademark e Search  Strong Trademark  Enforcing Trade Names

Common Law Trademarks Trademark Goodwill Abandoned Trademarks

Tm1b.com -Why use 1(b) filing basis?   Is the technology listed in your trademark registration obsolete?

Trademark Disclaimers Trademark Dilution TSDR Status Descriptors

Oppose or Cancel? Examples of Disclaimers  Business Cease and Desist

Patent, Trademark & Copyright Inventory Forms

USPTO Search Method for Likelihood of Confusion

Verify a Trademark  Be First To File    How to Trademark Search

Are You a Content Provider-How to Pick an ID  Specimens: webpages

Section 8 Affidavit  How to Keep A Trade Secret

Decrease Vulnerability to Audit/Cancellation  Facts Matter

Using Slogans (Taglines), Model Numbers as Trademarks

Which format? When Should I  Use Standard Characters?

How much does it cost to renew a trademark?    

Patent or Trademark Assignments  Opposition Pleadings    

Oppositions-The Underdog  TTAB Discovery Conference Checklist

How To Answer A Trademark Cease and Desist Letter

Trademark Integrity: Are your IP assets vulnerable?

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teas plus vs teas reduced fee  Insurance Extension

Trademark Refusals    Does not Function as a Mark Refusals

Advantages of ®  Difference Between TEAS Plus and TEAS regular

How to Respond to Office Actions  Final Refusal

Requirements for a Design Patent  Design Patenting

Acceptable Specimen  Supplemental Register $224 Statement of Use

How To Show Acquired Distinctiveness Under 2(f)

Trademark-Request for Reconsideration

Why Not Just Patents? Functional Trademarks   How to Trademark  

What Does ‘Use in Commerce’ Mean?    Opposition Defense   

Grounds for Opposition & Cancellation     Cease and Desist Letter

Water Shoes

Trademark Incontestability  TTAB Manual (TBMP)

Valid/Invalid Use of Trademarks     Trademark Searching

TTAB/TBMP Discovery Conferences & Stipulations

TBMP 113 TTAB Document Service  TBMP 309 Standing

Citable Examples and General Rules for Likelihood of Confusion

Examples of Refusals for Likelihood of Confusion   DuPont Factors

What are Dead or Abandoned Trademarks?

Can I Use An Abandoned Trademark?

Color as Trade Dress  3D Marks as Trade Dress  

Can I Abandon a Trademark During An Opposition?

Differences between TEAS, TEAS RF and TEAS plus  

Extension of Time to Oppose  Cease and Desist DIY

Ornamental Refusal  Standard TTAB Protective Order

SCAM Letters Surname Refusal  Trademark Opposition Timeline

What Does Published for Opposition Mean?

What to Discuss in the Discovery Conference

Descriptive Trademarks Trademark2e.com  What Can Be Trademarked  Likelihood of Confusion 2d  TMOG Trademark Tuesday

Acquired Distinctiveness  2(f) or 2(f) in part

Merely Descriptive Trademarks  Merely Descriptive Refusals

ID of Goods and Services see also Headings (list) of International Trademark Classes

Register a Trademark-Step by Step  

Protect Business Goodwill Extension of Time to Oppose

Geographically Descriptive or Deceptive

Change of Address with the TTAB using ESTTA

Likelihood of confusion-Circuit Court tests

Pseudo Marks    How to Reply to Cease and Desist Letter

Not Just Patents Often Represents the Underdog

 Merely Descriptive Refusal   Overcome Likelihood Confusion

Protecting Trademark Rights (Common Law)

Steps in a Trademark Opposition Process   

Section 2(d) Refusals   FilingforTrademark.com

Zombie Trademark  B-TMI.com-use trademarks to build value

What is the Difference between Principal & Supplemental Register?

Typical Brand Name Refusals  What is a Family of Marks? What If Someone Files An Opposition Against My Trademark?

How to Respond Office Actions  

DIY Overcoming Merely Descriptive Refusals

Trademark Steps Trademark Registration Answers TESS database  

Trademark Searching Using TESS  Trademark Search Tips

Trademark Clearance Search   DIY Trademark Strategies

Experience appearing before the Board (TTAB)

Published for Opposition  What is Discoverable in a TTAB Proceeding Counterclaims and Affirmative Defenses


©2008-2018 All Rights Reserved. Not Just Patents LLC, PO Box 18716, Minneapolis, MN 55418.

Call: 1-651-500-7590 or email: WP@NJP.legal. This site is for informational purposes only and is provided without warranties, express or implied, regarding the information's accuracy, timeliness, or completeness and does not constitute legal advice. No attorney/client relationship exists without a written contract between Not Just Patents LLC and its client. Past performance is no guarantee of future results. Privacy Policy Contact Us

 

m.Steps to a Trademark
How to Trademark
m.How to Trademark
Verify Right to Use
m.Verify Right to Use
m.Examples of Unitary or Composite Marks
m.Use in Commerce How Do I Know What Filing Basis to Use? TMEP 806 Filing Basis
m.Verify Right to Register
Content Providers
m.How to Select a Specimen TMEP 904
m.Office Actions Who May Respond to Office Actions? TMEP 602
m.Published for Opposition Publication for Opposition Suggested Format for Opposition Official Gazette Publication Confirmation Certificate of Registration or Notice of Allowance Trademark Marking
TMEP 906 Federal Trademark Notice
TMEP 1604 Affidavit of Use or Excusable Nonuse of Mark in Commerce under §8 of the Trademark Act
m.Principal v. Supplemental v. Common Law 0
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