HOW IS A TRADEMARK CREATED?


A trademark is created by use.  No registration is required to create a trademark, although filing an application with the United States Patent & Trademark Office (U.S.P.T.O.) for a  mark used in interstate commerce (or with a state agency for a mark used only within that state) can result in significant protections if registration is granted.  Also, if the mark has not yet been used in interstate commerce, the United States trademark law now allows the filing of a statement of intention to use, something which was not available under prior law, and which reserves the name for purposes of filing once the mark is used in commerce.  A statement of actual use must be filed within 6 months (or within an extended period) in order to preserve reservation of the mark.  

Trademark law is based upon the use of the mark in connection with the sale of a good or service, not whether it has been registered with a governmental agency.  (The exception is that a mark that has been registered with the U.S.P.T.O and used continuously for five years is usually not contestable.)  

The mark is limited to the goods and services it is associated with and the geographical area.  (Contrast this with a domain name on the internet.  With exceptions, the first person to get the domain name owns it as against every other person in the world.  This is not true in trademark law.  The intersection of these two areas of law has created considerable heat.  See the discussion in the Internet Law section of this web site.)

The purpose of the mark is to identify a person's goods or services.  Therefore, the use of a mark for one product or service will not necessarily block another person's use of a similar mark for a different product or service.  For example, there is "Dove" soap and "Dove" ice cream.  If a similar mark for the same good or service is earlier in time, the later mark will generally have to be altered or changed to avoid charges of infringement.


Law Offices of Douglas Clark Hollmann


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