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Intellectual Property – Copyrights and Trademarks

Facts about Trademarks
What is a trademark?
Do I have to register my trademark?
Are there federal regulations governing the use of the designations “TM” or “SM” with trademarks?
When is it proper to use the federal registration symbol (the letter R enclosed within a circle — ® — with the mark?
Do I need an attorney to file a trademark application?
What are common law rights?

What is a Trademark?

A trademark includes any word, name, symbol or device, or any combination used or intended to be used in commerce to identify and distinguish the goods of one manufacturer or seller from goods manufactured or sold by others, and to indicate the source of the goods. In short, a trademark is a brand name.

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Do I have to register my trademark?

No, but federal registration has several advantages including notice to the public of the registrant’s claim of ownership of the mark, a legal presumption of ownership nationwide and the exclusive right to use the mark on or in connection with the goods or services set forth in the registration.

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Are there federal regulations governing the use of the designations “TM” or “SM” with trademarks?

No. Use of the symbols “TM” or “SM” (for trademark and service mark, respectively) may, however, be governed by local, state or foreign laws and the laws of the pertinent jurisdiction must be consulted. These designations usually indicate that a party claims rights in the mark and are often used before a federal registration is issued.

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When is it proper to use the federal registration symbol (the letter R enclosed within a circle — ® — with the mark?

The federal registration symbol may be used once the mark is actually registered in the U.S. Patent and Trademark Office. Even though an application is pending, the registration symbol may not be used before the mark has actually become registered. The federal registration symbol should only be used on goods or services that are the subject of the federal trademark registration. [Note: Several foreign countries use the letter R enclosed within a circle to indicate that a mark is registered in that country. Use of the symbol by the holder of a foreign registration may be proper].

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Do I need an attorney to file a trademark application?

No, although it may be desirable to employ an attorney who is familiar with trademark matters. An applicant must comply with all substantive and procedural requirements of the Trademark Act and Trademark Rules of Practice even if he or she is not represented by an attorney.

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What are common law rights?

Federal registration is not required to establish rights in a trademark. Common law rights arise from actual use of a mark. Generally, the first to either use a mark in commerce or file an intent to use application with the Patent and Trademark office has the ultimate right to use and registration. However, there are many benefits of federal trademark registration.

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