Trademarks are designed to help your business create and maintain a unique brand separate and apart from that of your competitors. A trademark is essentially the name of a product and may also include an emblem, logo, or another graphic. Protecting it and preventing or stopping use by other companies has real-world financial value that deserves legal protection.
To protect your brand, the experienced California trademark lawyers at Lowe & Associates can file your trademark registration and enforce your trademark rights.
What is a Trademark?
A trademark is a symbol meant to represent your business, a product, or more. These "symbols" can be:
- "trade dress" including color schemes.
A trademark essentially represents a business's reputation, brand identity, and goodwill. It deserves the best protection possible to protect the investments made in your business's reputation.
There are multiple types of trademark rights in the United States including but not limited to the following:
- Unregistered trademarks;
- State registered trademarks; and
- Federally registered trademarks.
1. Unregistered Trademarks
Unregistered trademarks are not filed with a governmental agency but instead may be indicated by the ™symbol. Unregistered trademarks have protection under both federal and state common law.
Under California and United States law, trademark rights are established by the "first use rule." The first company to use a trademark generally has the right to use it. However, when the trademark is unregistered, its protections are generally limited to the geographical locations of its use if another company registers the same trademark. This means that in other areas, where you do not conduct business, your trademark may be unprotected.
For this reason, registration of your trademark is highly recommended.
2. State Trademark Registration
Registration can occur at the state or federal level. In California, a business can register its trademark for protection by the state. However, this does not afford nationwide protection, and the business will only have legal recourse for trademark infringement in the State of California.
3. Federally Registered Trademarks
By far, the best way to protect your trademark is to register it with the U.S. Patent and Trademark Office (USPTO). When a trademark is registered with the federal government, it is afforded the best protection the law has to offer, albeit only in the United States. Registrations in the European Union and other countries are also a good idea.
The USPTO carefully considers each proposed application to determine if a trademark registration is appropriate. The office considers whether:
- it is likely to be confused with a prior trademark;
- it is simply a generic or merely a descriptive term;
- it is geographically descriptive of the origin of the goods or services;
- it is a surname; or
- an individual's name or likeness is used without his or her permission.
Businesses should have their attorney conduct a trademark search prior to filing with the USPTO. A trademark search looks for similar business names that are already being used. This will save time and money in making the application and investing in your brand.
Benefits of Federal Trademark Registration
A federally-registered trademark is the best and most comprehensive protection you can give your trademark. It offers many advantages over a state registered trademark, including:
- The trademark office will not allow registration of confusingly similar trademarks in the future;
- You will have exclusive rights nationwide to the trademark;
- There is presumptive legal ownership of the trademark;
- The trademark is listed on the USPTO online database thereby giving notice to the world; and
- You have the right to use the ® symbol.
Time Limits on Registration
After a trademark is registered with the USPTO for the first time, it will remain registered nationally for a period of 5 years. To continue the registration of the trademark, it must be renewed between the 5th and 6th year after the registration date. Failure to renew can result in the cancellation of the trademark, leaving it open to use by other businesses.
After the first time it is renewed, a trademark must be renewed every 10 years. An experienced attorney will ensure that trademarks are properly and timely renewed.
Trademark Infringement Cases in California
Trademark infringement occurs when another business or individual uses the same trademark or one that is confusingly similar without permission. Infringement can be a simple accident, or it can be purposeful. In either case, a lawsuit can be filed to protect your interests.
Cease and Desist Letters
The first step in most infringement cases is to issue a cease and desist letter. The letter contains a threat of litigation if the infringer does not discontinue use of the trademark. Often this is all that is needed to stop the infringement and protect your rights without the cost of litigation.
When a cease and desist letter is not enough, litigation may be necessary to enforce your trademark rights. Most trademark litigation occurs in federal courts. To prove its case, a trademark owner must prove:
- that it owns a valid trademark (preferably a registered trademark);
- that the trademark was in use before its infringement by another; and
- that the defendant's trademark may confuse consumers about the source of goods or services.
Remedies in Infringement Cases
There are a variety of remedies that a successful trademark owner can recover, including:
- an injunction against further use of the infringing trademark;
- a court order requiring the destruction or forfeit of anything containing the infringing trademark;
- a monetary payment including damages for profits, damages, and in some cases, treble (triple) damages; and
- an order for payment of the costs of the lawsuit and in egregious cases, plaintiff's attorney fees.
Significant damage awards can result from a trademark lawsuit.
Consult an Experienced California Trademark Attorney
Trademark protection is an essential part of protecting your business's goodwill and brand. With the proper protection at the front end, your business can save time and money. Then, when another individual or business violates your rights, you have legal recourse to protect your trademark.
An experienced California trademark attorney at Lowe & Associates can protect and enforce your trademark rights. Contact us today for a consultation.