What is a Trademark?
A trademark is a type of intellectual property that protects how an individual or a business distinguishes their goods and/or services, and how they are able protect the reputation of that good/service. Many companies have designs, logos, and even company slogans which identify a particular good or service as their own. These are known as trademarks and their use and distribution can be protected by federal, state, or the common law.
How is a Trademark Enforced?
Trademark laws protect the identity and reputation of products which a brand name, logo, or slogan are associated with. As long as the trademark owner continues to use the trademark in the marketplace to identify a product or service then their trademark is protected under U.S trademark law. This protects companies from having others copy or reproduce their trademark without permission, subsequently affecting the reputation of the company which owns the trademark. To infringe upon someone’s trademark rights also means that a logo, design, or brand is similar enough to the trademarked one that a likelihood of confusion exists. If a reasonable likelihood of confusion exists then then the holder of the trademark can prevent the similar logo, design, or brand from being trademarked or even used. The enforcement and protection of trademarks can vary depending on where they are registered.
Trademarks do not have to be registered in order to be protected by the law. If a logo, brand, or design is used regularly to identify a certain good or service then that Trademark may be protected under common law rights. Unregistered trademarks are protected by common law trademark rights, generally allowing a trademark to be enforced in the area where the trademark is used. This means that unregistered trademarks used in South Florida will be much harder to enforce nationally when it must compete against a similarly registered federal trademarks. Thus, for example, another entity can have a logo very similar to your logo as long as the other logo does not have a likelihood of being confused with being associated with your business. Unregistered trademarks can be denotated by the “TM” symbol.
Trademarks used within a specific state may register for a state trademark within that respective state. This allows for protection within that specific state, only. A state trademark does not protect your brand or logo from being used in another state within the country, it only offers protections within the state that it was registered. State trademarks are usually registered when the product or service they represent are only sold within a specific state and no future plans of interstate or international commerce for that good or service exist. If you plan on selling a product or service in more states than just your own than you may wish to register a federal trademark. Like unregistered trademarks, state trademarks can be denotated by the “TM” symbol.
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Federal Trademarks are registered with the United States Patent and Trademark Office (USTPO). Registering your trademark with the USTPO will protect it’s use nationally and will overrule any existing state trademark as long as it is outside the state in which a trademark already had existing state protection. This means that if you register a federal trademark on a brand that has only been registered within a state, you are allowed to use that brand nationally as long as you can:
- Maintain the use of said trademark; and
- As long as it is not within the specific state in which a state trademark is registered.
Pending federal trademarks can be denotated by the symbol “TM” while registered federal trademarks can be denotated by the symbol “®”.
Advantages of Having a Federal Trademark versus a State Trademark.
If you were to only register one trademark, then registering a federal trademark would be your best option. A registered federal trademark offers many more protections than a state trademark. However, there are advantages to having both a Federal and State Trademark. Registering your trademark within a specific state allows you to pursue legal action within that state. This may not seem like much of an advantage, but it is much easier to obtain the help of state and local authorities when seeking to resolve a trademark dispute than obtaining the help of federal authorities. However, typically, and Florida included, state trademarks are also much easier, quicker, and cheaper to obtain than federal trademarks.
While the process of registering a federal trademark may be more complicated, the protections that it offers are worth the effort. Thus, we recommend that when you seek to register a trademark, federally or within your state, that you seek legal counsel to help you navigate the at times confusing world of intellectual property.
PereGonza The Attorneys can offer a free consultation and give you insight on what the best course of action for what your specific case may be. Fill out our personal intake form for more information.