Trademark Lawyers in Orange County
Definition of a Trademark
A trademark is a recognizable sign, design or expression which identifies products or services of a particular source from those of others. It can be any word, name, symbol, or design, or any combination thereof, used in commerce to identify and distinguish the goods of one manufacturer or seller from those of another and to indicate the source of the goods. Below are 64 examples:
Trademark – Use in Commerce and Distinctiveness
Two basic requirements must be met for a mark to be eligible for trademark protection: it must be in use in commerce and it must be distinctive.
The first requirement – that a mark be used in commerce, arises because trademark law is constitutionally grounded in the congressional power to regulate interstate commerce. If a mark is not in use in commerce at the time the application for registration is filed, registration may still be permitted if the applicant establishes, in writing, a good faith intent to use the mark in commerce at a future date.
The second requirement – that a mark be distinctive, addresses a trademark’s capacity for identifying and distinguishing particular goods as emanating from one producer or source and not another. Trademarks are traditionally divided into four categories of distinctiveness: arbitrary/fanciful, suggestive, descriptive, and generic.
Selecting The Right Trademark
WHen considering a business LOGO and/or Trademark, the process is the same. When brainstorming the design, consider both the visual appeal and availability. Centering on a good trademark will often mean that it will be pleasing visually and when spoken. Moreover, it will be be available for your use and thus enforceable under the trademark laws. Our Orange COunty lawyers will work with you, or can double-check your possibilities as you focus tighter on a final trademark design. We can assist you with your selection process and will conduct trademark searches to prove the availability of any name, logo, design or color that you choose as your trademark. Developing a rock-solid trademark provides that critical cornerstone to build a business.
Registering Your Trademarks
Your trademarks should be registered with the U.S. Patent and Trademark Office. In some circumstances it would also be wise to seek international registration so as to to take advantage of the global protection provided by International trademark laws. Our experienced and skilled trademark lawyers will file your trademark applications in the appropriate filing offices and see the applications through to complete the registration process.
Protecting Your Trademarks
By being proactive, you can put a stop to trademark infringement before such infringement takes a toll on your bank balance and brand. In today’s digital wild, wild west environment, LOGOs and Trademarks are ripped off daily. Your trademark should be monitored to prevent it from being hijacked and used by unauthorized parties. We can set up a monitoring service that does continuous sweeps of the Internet which is a powerful and effective manner of locating scammers and bootleggers who regularly lift trademark’s and other Intellectual Property. When discovered, we can send out a cease-and-desist demand –or– file a trademark infringement lawsuit seeking a preliminary injunction to protect your rights and stop the illegal use and/or product knockoffs before they adversely affect your brand and market share.
Similarly, we can head off messy trademark disputes and litigation – by being advised when other 3rd parties are attempting to register a trademark that is similar to yours. While not seemingly as brazen as a pure rip off attempt, these backdoor challenges may be more serious in that many of these 3rd parties are absolutely aware of your trademark, but are attempting to use legal means to knock you off —and are often successful— if you have your head in the sand for a 5-year period. When these premeditated schemes, or innocent errors are uncovered, we can file opposition or cancellation proceedings with the U.S. Patent and Trademark Office. Being proactive and on the lookout, is much better than finding out of a competing use that was happening over time (unnoticed) which often results in brand confusion, and is expensive to litigate.
History of Trademark Ownership
Trademark rights are created by usage, not actual registration. What this means, is that if you have been using a trademark, essentially you own the trademark. If a dispute bubbles up over the use of the mark that you consider your trademark, then to prevail you must prove that you used the mark prior to the other party or business. The U.S. Patent and Trademark Office is not the only protection. You can register a mark in California or any other State where you are conducting business. That said, if you are using your mark in more than one State, you really should apply for a Federal Trademark registration.
Common Law Trademark vs. Registered Trademark
In the time span prior to registering your mark, your mark is protected by right of common law. So, if you discover that some other business is using your mark after you started using the mark —and you can prove it— then it is very likely that you will be able to enforce your rights against the infringing business. There are, of course, many requirements besides the fact that you were using it first, as it must meet the basic requirement of a mark that can be registered in the first place, such as unique and not generic in nature. If you think that “Lumber Company” is being infringed on, an infringement claim is likely a lost cause. If, on the other, your long-dead ancestor had started using the mark: “Gahahl Lumber,” in 1884 it is a slam dunk. Now that may be an absurd comparison, but “lumber” is just so generic, that it will not prove to be sufficiently unique-enough to be defended. Upshot? The more unique your mark the stronger your mark and your success in registering a trademark will soar.
Registered Trademarks offer Additional Legal Rights
Once registered, you receive additional legal rights – After your mark becomes a Registered Trademark, you immediately are granted additional legal rights. If you are forced to file a lawsuit to stop an infringer, can –by law– recover attorney fees if you prevail. By having a common law mark, instead of a registered trademark, you are solely responsible for paying you attorney fees even if you win. Of course, you must play by the rules, once you have a registered trademark. You must convert all your printed and digital marks to include the registered symbol: ®.
Call Us for a Free Phone or Office Consultation
Call Orange County Business Lawyers for a free phone or office consultation. We are dedicated to helping Orange County clients make educated, informed decisions about their business endeavors, opportunities and troubles that invariably come knocking —at some point— on every business owner’s doors. Call us at (888) 866-3620 for an on the spot phone consultation or an appointment to confidentially review your situation.