Intellectual Property Frequently Asked Questions

What Is A Trademark? And Just What Are Service Marks?

Trademarks and service marks are the legal protection afforded to a logo, symbol (including sounds and even smells), name, and/or words used to associate them with a business and to differentiate them from others.  The difference between the two is determined by the business type.  Trademarks are used for goods (such as Ray-Ban for sunglasses) and service marks are used for services (such as Roto-Rooter for plumbing).  It should be noted that in the previous examples, it is the name of the product and the service itself that gets the trademark, not the name of the business providing them.  Another example of how a trademark can be used is as a tagline. Wendy’s classic “Where’s the beef?” is an example of a trademarked tagline.  Even colors or shapes of packaging may be given service mark or trademark protection, respectively.
Trademarks and service marks can only be used for real products and services.  For example, a person cannot get a trademark for a fictional product called “Cow-In-A-Can” if they are not actually selling a product by that name.  However, federal law accounts for up-and-coming businesses by providing an “intent to use” application that can be filed before the business begins operation.

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What do ®, TM, and SM mean?

TM stands for “trademark” and SM stands for “service mark.” A business can use TM or SM without having a federal or state registration. Businesses can claim common-law rights to these marks. Trademarks and service marks bearing the “®” symbol (which stands for registered) have been submitted and approved for registration by the United States Patent and Trademark Office (or USPTO).

Why Should I Go Through The Trouble Of Getting My Trademark Registered With The United States Patent And Trademark Office?

If I can use a TM or SM to save myself time and money, why should I go through the trouble of getting my trademark registered with the United States Patent and Trademark Office (USPTO)?

One of the best advantages of getting a trademark federally registered with the United States Patent and Trademark Office (USPTO) is that the trademark receives nationwide priority.  This means that if the trademark is only used in its home state, federal registration will give it priority in the other 49 states over another trademark.  This gives a fledgling business a chance to grow at a natural pace with its product and not have to worry about being shut out of other states by someone with a competing trademark.  Common-law trademarks only protect the mark within the states it is being used for business purposes.
Additionally, a registered trademark used for a continuous five years can apply for incontestability.  If a trademark is found eligible for incontestability, it cannot be challenged under most circumstances.
Finally, registering a trademark allows the trademark owner to be awarded statutory damages by a court.
Having a trademark federally registered automatically includes it in the United States Patent and Trademark Office database.  So anyone who may be trying to register a mark similar to one that is already registered will likely modify their mark so as not to infringe on the previously registered mark.  If a mark submitted for registration is too similar to one that is already registered, the USPTO will not approve the submission.

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How Long Does A Trademark Registration Last?

The short answer is 10 years. This one is a bit tricky, though. The user must file a Section 8 Affidavit (Affidavit of Use) between the 5th and 6th year of the marks original registration and again between the 9th and 10th years. After this, a Section 8 Affidavit must be filed between every subsequent 9th and 10th year. In addition to this, a Section 9 Application (Application of Renewal) must be filed between every 9th and 10th year of registration. Each of these deadlines has a six-month grace period, but those grace periods come with additional fees.

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Can I Trademark The Name Of My Business?

Actually, no.  Here’s why:  A trademark (or service mark) legally stops other companies or individuals from using a company’s logo, symbol, or words and names used to differentiate itself from other businesses, not the name of the actual business.  So while a person may own Oakley sunglasses or have their house cleaned by Molly Maid cleaning services, the trademark is not being issued to the name of the business, but rather in how the product or service is described.
The name of a business is known as a trade name, and is not eligible for a trademark or service mark.  In the state of Florida, a business does not have to file for a trade name, but it is strongly recommended as Florida gives the right of usage to the first company that can prove usage of the business name.  However, this does not stop a business based in another state from naming itself the same name as a business in Florida (consider the number of businesses called “AAA Lawn Care”).

What Is a Patent?

A patent is a license granted by the government to an inventor giving the inventor the exclusive right to produce, utilize, and sell their invention. The invention must be considered innovative and useful.

Does a patent last forever?

In most cases a utility patent issued on or after June 8, 1995 will be enforceable for 20 years (from the date the patent is granted to 20 years after date the application was originally filed). There are occasional fees that must be paid in order to keep the patent from lapsing during these time periods. Design patents are normally good for 14 years, and have no maintenance fees.

What Types Of Penalties Could I Incur If I Infringe On Someone Else’s Intellectual Property Rights?

Infringing on someone’s intellectual property rights is a serious matter. A court may grant an injunction against the infringing party until the matter can be resolved. If the defendant is found guilty, a court may award the plaintiff restitution in addition to monetary (and possibly punitive) damages. The losing defendant may also have their intellectual property rights revoked and be made responsible for paying court costs and fees. An individual who infringed another’s intellectual property rights may also be charged criminally and be subject to restitution and criminal penalties, including incarceration.

What Is a Copyright?

Copyrights are used to legally protect the rights of authorship. Creative works such as books, poems, music, computer programming and artwork can be protected by copyright. The ideas expressed by the creative work cannot be protected, just the means by which the ideas are expressed. For example, a poet can write a poem expressing their joy and sadness and copyright the poem itself, but they cannot copyright the ideas of joy and/or sadness.

How Long Does A Copyright Last?

If the work is copyrighted after 1977, the copyright will last for 70 years after the death of the author (here the term author is used to mean the person who creates the work, whether it be a book, poem, painting, etc.). Exceptions to this rule include works-for-hire, works published under a pseudonym, or works published anonymously. Depending on when these are published, they will have a copyright lasting from 95 to 120 years. The older a work is, the more the rules regarding copyrights change. Any works published before 1978 and after 1922 have copyright protection for 95 years, starting on the date of their publication. Any work published within the United States before 1923 is not protected by copyright law, and is considered in the public domain and free for use by anyone.

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