Trademarks and service marks can provide useful protection to businesses but the onus for enforcing that is on the trademark owner.
Whether starting an all-new business or adding new products or services to an existing company’s offering, California business owners and leaders should have a good understanding of when and why they might need a trademark. But, before getting to this point it is important to clarify what a trademark is, what it provides and how it differs from other types of intellectual property protections.
While some people may think that a trademark is the same thing as a copyright or a patent, this is not true. As explained by the U.S. Patent and Trademark Office, a trademark grants the owner the use of a specific term, graphic, symbol or phrase or even a mix of terms and visuals together. Often referred to as a trademark, the service mark grants the same type of use but for services rather than for products .
In contrast, a copyright protects creative works like writings, art or musical works. A patent protects an invention and this may include the actual item produced or even the manner in which it was produced.
Forbes explains that a trademark is not automatically granted although a company’s continued use of a particular mark may provide some level of common law protection. For formalized protections, an application must be made to the USPTO. Approval of a formal trademark registration allows businesses to grant licensee use, legally protect their marks and extends protection to the national level.
In theory, there are few limitations on what may be trademarked insofar as words, symbols, designs, goods and services may encompass many things. However, when seeking trademark protection, a primary factor that may result in the denial of a registration is the potential for confusion with another existing trademark.
This confusion may arise from a look or even sound that is too similar in nature. If two products use similar terms and related to like products or services, that may also lead to a denial.
Trademark registrations must be maintained by the owners else they may expire. Similarly, enforcement of a trademark rests squarely on the shoulders of the trademark owner. The USPTO only grants trademarks. It does not enforce their use or any alleged infringement on them.
If infringement is alleged by a trademark owner, potential remedies may include cessation of the use, financial compensation or even destruction of items that contain the mark.
Companies considering trademarking their products or services should always consult with an experienced intellectual property attorney. This provides them with the best guidance through the application process and beyond.