Trademark Registration – An Overview

A registered trademark is one of the 3 core facets that distinguish a franchise business under the law. If you’re serious about franchising, then your brand must be protected. It is tangible evidence of an intangible asset, and is something potential franchisees, investors and lenders, look for.

A “trademark” is a word, phrase, symbol or design, or combination of words, phrases, symbols or designs, which identifies and distinguishes the source of the goods or services of one party from those of others. A service mark is the same as a trademark except that it identifies and distinguishes the source of a service rather than a product. Normally, a mark for goods appears on the product or on its packaging, while a service mark appears in advertising for the services. A trademark is different from a copyright or a patent. A copyright protects an original artistic or literary work; a patent protects an invention.

Trademark rights arise from either (1) actual use of the mark, or (2) the filing of a proper application to register a mark in the United States Patent and Trademark Office (USPTO) stating that the applicant has a bona fide intention to use the mark in commerce regulated by the U.S. Congress.

Federal registration is not required to establish rights in a mark, nor is it required to begin the use of a mark. However, federal registration can secure benefits beyond the rights acquired by merely using a mark. For example, the owner of a federal registration is presumed to be the owner of the mark for the goods and services specified in the registration and to be entitled to use the mark nationwide.

There are two related but distinct types of rights in a mark: the right to register and the right to use. Generally, the first party who either uses a mark in commerce or files an application in the USPTO has the ultimate right to register that mark. The USPTO’s authority is limited to determining the right to register. The USPTO cannot provide advice concerning rights in a mark. Only a private attorney can provide such advice. Unlike copyrights or patents, trademark rights can last indefinitely if the owner continues to use the mark to identify its goods or services. The term of a federal trademark registration is 10 years, with 10-year renewal terms. However, between the fifth and sixth year after the date of initial registration, the registrant must file an affidavit setting forth certain information to keep the registration alive. If no affidavit is filed, the registration is canceled.

The trademark registration process has many steps, and take time to have the registration approved. If your trademark merits registering, it is worth using and registering correctly and in a way that will provide you with the maximum protection and benefit.

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