According the United States Patent and Trademark Office (“USPTO”), a trademark is “a word, phrase, symbol, and/or design that identifies and distinguishes the source of the goods of one party from those of others.” Similarly, a service mark is “a word, phrase, symbol, and/or design that identifies and distinguishes the source of a service.” Often, the term “trademark” is used to refer to both trademarks and service marks. Typically, trademarks protect things like brand names and logos, but even sounds and colors can be trademarked in certain circumstances.
What are the benefits to registering a trademark with the USPTO?
Registering your trademark with the USPTO (verses counting on common law protection only) offers many benefits such as:
1. Exclusive right to use the mark for the goods and services covered by the registration.
2. Remedies in case of infringement.
3. Ability to sell or assign the mark.
4. Right to use the federal registration mark ® which puts others on notice of your registration.
How is the protection from a trademarked company name different from just forming a Texas corporate entity with the name or using a DBA in Texas?
Forming a corporate entity in Texas prevents the Secretary of State from forming another company in Texas with a name that is not distinguishable from your company’s name. However, it does not does not give you superior rights to use that name in commerce. Therefore, if someone else has trademarked rights to your company name, you may not use that name in commerce and if someone files a trademark application for a name that is the same or similar to your company name, having a company with that name will not prevent the trademark from being registered.
Similarly, filing a DBA or an Assumed Name Certificate does not give you superior rights to use a name in commerce. In fact, even if you have a DBA for a certain name, the Secretary of State can still approve a corporate entity with the same name. Also, if someone files a trademark application for a name that is the same or similar to your DBA, your DBA will not prevent the trademark from being registered.
How do I register my trademark?
There are many factors to consider when filing a trademark application, such as whether to file with the USPTO or with a specific state, which class or classes to pursue, and how to describe your goods or services. You also need to consider whether a similar mark already exists and how that may impact the probability of a successful registration.
It is important to contact an attorney to assist you with the trademark application process, so if you are interested filing a trademark application or learning more about your options, please call to schedule an appointment with one of the attorneys at Waldron & Schneider.
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