A person seeking a trademark must show that he was the first to use a distinctive marking associated with the sale of a product or service. A trademark generally is a unique symbol, mark, combination of words, or other device that a person or company uses to identify a product or service. Therefore, to get a trademark, it is necessary to develop a unique mark and begin using such a mark by selling a product or service with the mark attached. This will afford certain legal protections to the owner of the mark. It will also establish a basis for submitting an application for trademark registration with the U.S. Patent and Trademark Office (USPTO), which requires use of the mark in interstate commerce.
Once a person designs or develops a trademark, he may use the ™ or ℠ designations immediately following the trademarked item. These designations indicate a trademark or service mark. An owner may use these designations to get a trademark legal protection prior to formal registration of the mark. Common law affords limited protection to an unregistered trademark by preventing others from using the mark or similar mark. To get greater legal protection for a trademark, an owner must formally register the mark with the state in which it is used or with the USPTO.
In the U.S., getting a trademark registered with the USPTO requires an owner to have used the mark in interstate commerce. This means the owner of the mark must ship the product bearing the trademark to a customer in a different state. In addition, an owner must conduct a trademark search prior to registration to determine whether a mark is already in use. The USPTO has records of registered trademarks and applications to get a trademark registered from others seeking registration. The owner of a trademark may hire an expert experienced in conducting searches of trademarks for assistance in this matter because a trademark search is complex.
After an owner has completed the process of a trademark search, he may obtain an application from the USPTO to register a trademark. The application requires information concerning when the trademark was first used in interstate commerce and how the mark is used. It must include drawings of the mark, and other detailed information is required in the application. If the USPTO determines that an owner is entitled to get a trademark registered, it will then publish the trademark in an official publication for a specified period. This allows others an opportunity to raise challenges to the request for registration. If no one challenges the registration, the USPTO will issue a certificate of registration to the owner.
