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Patent Attorney Scott Cleere

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About Trademarks
Q: What is a Trademark?A: A trademark is anything that is distinctive and that is used to designate a single source of goods or services. It is not necessary that the source be generally known, just that it be known to signify a single source.

Q: What is the difference between a Service Mark and a Trademark?
A: A trademark is used to designate a source of goods and a service mark is used to designate a source of services. The distinction is largely historical and has little or no bearing today as the rights associated with each are essentially identical. The term mark is often used generically to refer to both trademarks and service marks. The term trademark is also sometimes used as a replacement for the term service mark.

Q: What is a common law trademark?
A: A common law trademark is any mark that is not registered with a state or the federal government. The term is most commonly used to refer to marks protected by state law based solely on use without any registration. However, many states have enacted laws allowing for registration with the state. These may still be protected under state and federal laws, but generally are harder to protect against potential infringers than registered marks.

Q: What is a trademark registration?
A: Trademarks may be registered with both state agencies and the federal government via the United States Patent & Trademark Office ("USPTO"). A trademark or service mark is said to be registered when the USPTO places it on the Principal Register. Only marks that are listed on the Prinicipal Register may use the "circle R" symbol, ®.

Q: Why should I register my mark?
A: There are a lot of advantages to having a federally registered mark, especially if it is ever necessary to enforce your rights against an infringer:
  • Nationwide notice of the trademark owner's claim.
  • Evidence of ownership of the trademark.
  • Access to federal courts for enforcement.
  • U.S. Customs Service may be used to prevent importation of infringing goods.
  • Basis for obtaining expedited registration in foreign countries.

Also, after five years of registration, a mark may become "incontestable," which makes it much harder for an infringer to challenge the validity of the registered markholder's rights.


Q: How do I register my mark?
A: The first step is applying for registration with the USPTO. This can be done before you start using the mark on products or in advertising, but actual use of the mark must be shown before your mark will be registered. A trademark attorney will examine the application and determine whether the mark appears registerable.
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