A trademark or service mark is a word, phrase, logo or combination thereof which is used by an individual, business organization or other legal entity to identify uniquely the source of its products and/or services to consumers, and to distinguish its products or services from those of other entities.
You may only file for a federal mark if you have use in interstate commerce, re you are doing business or advertising either across state lines or from the US to another country or vice versa.
The primary concern for most people is whether they are filing their mark as an intent to use or an use based mark. Intent to use marks are marks which you wish to preserve as your own, but which you have not begun using in interstate commerce. Use based marks are marks which you have already begun using in inter state commerce. There are other types of trademark filings, which include: certification marks, collective trademarks, defensive trademarks and configuration marks.
You may only use the r in a circle mark (®) if you have a federally registered trademark.
You may use the TM mark (™) next to any trademark or service mark which you are claiming in association with goods or services you are currently providing to third parties.
A trademark search is not required, it is however very advisable. A trademark search is less expensive then the application and it will tel you if you have a chance of having the application approved. In trademark litigation proof of a search which does not show a previously registered mark can lower possible damages if you are found to be infringing on another entities mark.
A trademark protects a mark that is associated with the sale of goods. A service mark protects a mark associated with the offering of services.
As soon as the search comes back positive you may begin using your mark in commerce. You do not want to use the mark before the search as you might be infringing on some one else’s rights.
Federal trademark registration has several benefits:
- Constructive notice nationwide of the trademark owner’s claim.
- Evidence of ownership of the trademark.
- Jurisdiction of federal courts may be invoked.
- Registration can be used as a basis for obtaining registration in foreign countries.
- Registration may be filed with U.S. Customs Service to prevent importation of infringing foreign goods.