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Frequently Asked Questions
Q. What is a trademark?
A. A trademark. is a form of intellectual property ... an identifying word,
phrase, symbol or design unique to a source of goods or services.
Q. What is a service mark?
A. A service mark is a limited type of trademark that identifies the
source of services.
Q. What is a certification mark?
A. A certification mark is a statement of assurance that goods or services
of others have certain characteristics.
Q. What is a collective mark?
A. A collective mark indicates membership in an organization, or that an
organization produces or authorizes goods or services.
Q. What are the various categories of marks?
A. Five basic categories of marks exist:
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Fanciful marks. These are made-up words. Examples include ROLEX® and KLEENEX®.
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Arbitrary marks. These are common English-language words that are used in ways
unrelated to their normal English usage, or to the goods or services they identify.
Examples include APPLE® for computers and IVORY® for soap.
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Suggestive marks. These are marks that describe indirectly the products or
services they identify. Examples include 7 ELEVEN® and COPPERTONE®.
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Descriptive marks. These marks may describe directly the products or services
they identify, or the geographical location from which the goods or services allegedly
emanate. Marks that contain or are based on a person's surname also fall into this category.
Examples include CHAP STICK®, BUFFERIN®, BOSTON MARKET®, and BABY RUTH®.
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Generic terms. These are common descriptive names of goods or services. Examples
include computer, lip balm, and candy bar.
Q. What categories of marks may be acceptable as valid trademarks?
A. Fanciful, arbitrary, and suggestive marks may be valid trademarks.
Descriptive words may become valid trademarks only after years of use and extensive
advertising that results in "secondary meaning" as a trademark. A generic term
never can become a trademark.
Q. How do I protect my trademarks?
A. Trademark rights begin as soon as a mark is used and are limited to the geographic
area in which the use occurs. To obtain protection throughout the United States, the owner
of a trademark must register it with the United States Patent and Trademark Office (USPTO).
Federal registration requires use of the mark in interstate or international commerce, which
is regulated by Congress. An applicant with a bona fide intent to use the mark in trade
and commerce in the future may file an intent-to-use application prior to such use.
Q. What is a trademark search?
A. A trademark search is a review of national and international databases to ascertain
whether a proposed trademark already is in use. Before using a new mark, its owner should
secure a trademark search in an effort to avoid unknowing infringement of another's
trademark. Because trademark infringement can be unintentional, infringers may be subject
to legal action even if they didn't know that their new mark was similar to another.
A preliminary search helps to ensure a new mark's validity and determine that it will not
cause confusion with a pre-existing mark.
Q. How long does trademark registration last?
A. Trademark registration can last indefinitely if the trademark remains in continuous
use and the registration is renewed every 10 years. Also, between the fifth and sixth
anniversary of the initial registration date, an affidavit of continued use must be filed.
Q. What is trademark notice?
A. The term "trademark notice" refers to the symbols and abbreviations in common use
to identify trademarks: 'TM' identifies the accompanying word, phrase, symbol, and/or
design as a trademark. This designation does not indicate federal registration of the mark,
but does constitute public notice of a claim to trademark rights.
'SM' is used in a similar fashion for a service mark.
'®' is a notice governed by federal law, indicating registration of the mark with the USPTO.
Q. What is trade dress?
A. Trade dress is the distinctive packaging or design of a product that promotes the
product and distinguishes it from other products in the marketplace. Examples include the
shape of Frangelica liqueur bottles, the red-and-white color scheme on a Coca-Cola®
can, and the unique appearance of Fuddruckers' restaurants. Trademark law protects trade
dress if the trademark owner can show that a design has acquired secondary meaning, so
that the average consumer would likely be confused about the product's origin if another
product were allowed to appear in similar dress.
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