In most countries, and especially in the United States of America, it is not the registration of a trademark that gives you legal rights but the use of a trademark in commerce. Even in countries where use of a trademark is not a prerequiste to registration (like Canada or the European Union), a trademark registration can be challenged if it is not used for the goods and services listed in the registration within five years. For that matter, in the USA, a registered trademark cannot be maintained if the owner of the mark has ceased using the mark in commerce, unless there is an acceptable explanation for the nonuse. So if you do not use a mark, you could lose it!
By using a mark in commerce, you obtain rights in the mark. To protect against the theft of your mark by someone else, you should use the letters “TM” (for “Trademark Mark”) or “SM” (for Service Mark) following your trademark word or design in small caps by the mark. These symbols provide notice to the public that you are using the mark as a trademark or service mark. For clarification, a “trademark” is used for goods you are selling and placed on those goods (like vehicles, clothing, recordings), and a “service mark” is used for services you are providing and included in advertising for those services (like a restaurant, construction, or professional services). These distinctions will be further discussed in a future post.
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If you are the first to use a mark in commerce within a single State, you can acquire rights to protect your mark in that geographical region-even against someone who later seeks to obtain a federal registration of a similar or identical mark for the same goods and/or services. Your mark would be said to have “priority” over the mark by the later user–at least in your geographical area. For added protection, you can also seek to have your mark registered with the Secretary of State where you are using the mark. If you are using the mark in commerce across state lines (in “interstate commerce”), you may be able to file an application with the United States Patent and Trademark Office (“USPTO”) for a federal registration which gives you added protection including implied notice of your mark to others across the country who may seek to use the same or similar mark for similar goods and/or services.
The point of this blog is to encourage you to use your mark in commerce to acquire, and then protect, your rights in the mark–especially in the USA. In future posts, I will discuss how to conduct a search to determine if someone else is already using the mark, and what information is needed to file a trademark application with the USPTO.
If you have questions about using your trademark or service mark in commerce, please let me know. I’m glad to discuss this further.