Legal Definition of a Mark

Another common misconception is the belief that choosing a brand that simply describes your products or services is effective. Creative and unique brands are more effective and easier to protect. Learn more about strong brands. The Lanham Act provides federal protection for distinctive signs used in commerce. See 15 U.S.C. §§ 1051 et seq. Federal protection for unregistered trademarks is generally available in 15 U.S.C. § 1125(a), which creates a civil action for claims of false appellation of origin and false advertising. While registration is not a requirement for federal trademark protection, registered trademarks enjoy significant advantages over unregistered trademarks, including: Registration serves as a national constructive notice of trademark ownership and use under 15 U.S.C.

Section 1072; and a trademark can acquire indisputable status after five years of continued use under 15 U.S.C. Section 1065, which strengthens the owner`s rights by removing a number of defenses against infringement claims. The first requirement that a trademark be used in commerce stems from the fact that trademark law is constitutionally based on the power of Congress to regulate interstate commerce. See commercial clause. The Lanham Act defines a trademark as a trademark that is used in commerce or registered with the good intention of using it in commerce. See 15 U.S.C. § 1127. If a mark is not used in trade at the time of filing the application for registration, registration may nevertheless be admissible if the applicant justifies in writing his intention to use the mark in the course of trade at a later stage. See 15 U.S.C. § 1051.

The common law and traditional registration procedures of Lanham Law grant exclusive rights to a mark to the first person to use it in commerce. You become a trademark owner as soon as you use your trademark with your goods or services. You create rights to your trademark by using it, but those rights are limited and apply only to the geographic area where you offer your products or services. If you want stronger national rights, you will need to apply for your trademark registration with us. The Tariff Act of 1930 makes it illegal to import foreign-made goods into the United States if the goods or their packaging bear a trademark owned by a U.S. citizen, corporation, or other association, and the trademark is registered in the PTO. See 19 U.S.C. § 1526. See also service mark, collective mark, certification mark, trade name. Whenever you use your brand, you can use an icon with it. The icon lets consumers and competitors know that you claim the brand as your own.

You can use “TM” for goods or “SM” for services, even if you have not applied for your trademark registration. Within five years of registering a trademark in the OTP, any person who believes that they will be harmed or aggrieved by the registration may file an application to have the registration expunged. See, e.g., 15 U.S.C. § 1064; 37 C.F.R. §§ 111 – 114. You do not need to register your trademark. However, a registered trademark offers more extensive rights and protection than an unregistered trademark. n. 1) an “X” made by a person who is illiterate or too weak to sign his full name, which is used in the expression “His sign” or “Your sign”.

In the rare cases where this happens, the “X” should be inside or next to a spelling such as “Theresa Testator, her sign.” If the mark is intended as a signature for a will, it must be officially attested (like signatures) to validate the will. (See: will) Once an application for registration has been approved by an examiner, it is published in the Official Gazette of the Patent Office for opposition. See, e.g., 15 U.S.C. § 1062; 37 C.F.R. § 2.80. An opposition may be filed by any person who considers that he would be harmed by the registration of a mark, including damage caused by dilution. See, e.g., 15 U.S.C. § 1063; 37 C.F.R. §§ 2.101 – 2.106.

An opposing party must assert and prove that: (1) it could be harmed by the registration of the applicant`s trademark; and (2) there are valid legal bases explaining why the applicant is not entitled to register the claimed mark. If the registration is not successfully challenged, a trademark entitled to registration is registered in the PTO, a certificate of registration is issued and the notice of registration is published in the Official Gazette of the PTO.