Trademarks & Trademark Protection
A trademark is a word or phrase of plain or stylized text or a symbol or graphic design or other easily distinguished constant characteristic of a product or service that performs as an identifier of a particular source of those goods or services. Trademarks are employed by anyone or any group seeking to set themselves apart from other persons or groups that may be sources of similar goods and services. Trademark users include commercial enterprises, government or private agencies or entities engaged in public discourse or conduct, or anyone that desires recognition over anonymity relating to its goods or services. “Trade dress” is a related phenomenon that functions similarly to identify the source of a product, but this term refers to the overall visual impression or appearance of the design of an article of manufacture or its packaging.
In the U.S., state and federal trademark rights are established based on earliest and continuous commercial use of a trademark in U.S. commerce, even with no registration. U.S. common-law, consistent with international trademark principles, requires that later entrants to the same market use marks dissimilar to those of earlier entrants to avoid a likelihood of confusion as between the later entrant and the earlier entrants. However, although state and federal trademark registration is not required in the U.S., it does offer significant benefits for geographical scope and enforcement.
For companies seeking to establish new trademarks, a clearing search reduces the risk that a selected mark will not conflict with an existing mark. In addition, a lack of distinctiveness associated with a mark may prohibit or limit the protection afforded by the mark. Generic or descriptive terms may be unenforceable as trademarks. There are also certain legal formalities associated with the registration process and maintenance of trademarks, for which one should consult a trademark attorney.
The intellectual property attorneys and staff at Maine Cernota & Rardin are highly experienced and skilled at helping you to identify which candidate trademarks are best suited to registration and legal enforcement, and which competing marks are best given a wide berth to avoid trademark infringement issues.