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U.S. Trademark Law Basics

A trademark is a word, phrase, symbol, design, shape, color, smell or sound, or a combination of thereof, that identifies and distinguishes the source of the goods of one party from those of others. A service mark is the same as a trademark, except that it identifies and distinguishes the source of a service rather than a product.

Trademark rights are obtained the first time a mark is used to identify the source of goods or services and are imited to the area where they are sold. Such unregistered rights are obtained under common law; however, registration of trademarks may also be sought from the various states for marks as well as from the U.S. Patent and Trademark Office for marks used in interstate commerce. The symbol "™" is used for common law and state registered trademarks, while the symbol "®" is limited by law for Federal registrations.

Federal registration requires that the application use or have an intent to use the trademark in interstate commerce. The trademark is then examined to determine the strength of the mark for registration. The examination covers whether there are conflicting marks already in use or whether the mark itself unique or desciptive. Weak trademarks are denied registration or are subject to registration on the supplemental register. Factors may include, but are not limited to, similarity to existing marks, or whether the mark is descriptive of the goods or services.