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  • Writer's pictureDavid Sterrett

New Year's Resolution - Protect Your Trademark

Protecting your business trademark should be top of your 2017 resolutions:

If you’re wondering whether protecting your brand with a trademark is important, here are some key facts to consider.

First, what exactly is a trademark/service mark? According to the USPTO “A trademark/service mark is generally a word phrase, symbol, or design or a combination thereof, that identifies and distinguishes the source of the goods/services of one party from that of another.”

Key here is that a trademark protects the source not the goods or services themselves. And, registration approval rests on the ‘likelihood of confusion”. The USPTO applies a 2-part test to determine if the marks are similar and whether the goods and or services of the parties are related such that consumers would mistakenly believe that they come from the same source.

In other words, if the marks are similar but apply to an entirely different classification of goods or services they may be approved. In many instances, two identical marks can co-exist as long as the goods and services are not related. (Think Dove soap and Dove ice cream bars.)

Why should you register your mark? After all, if you’ve registered your business with your state, doesn’t that protect you?

  • Not according to the USPTO. “A state’s authorization to form a business with a particular name does not give you trademark right and other parties could later try to prevent your use of the business name if they believe a likelihood of confusion exists with their trademark.”

But, you’ve gained the right to own your domain name. Isn’t that, at least, safe?

  • No. “Even if you register a certain domain name with a domain name registrar, you could later be required to surrender it if it infringes someone else’s trademark rights. “

So, now you realize that a trademark for your brand is top of your to-do list. As you think about a name, remember: the issue is not whether the actual goods and/or services are likely to be confused but, rather, whether a likelihood of confusion would exist as to the source of the goods and or services.

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