A “trademark” is any word, logo, or other symbol used to identify a particular source (e.g., manufacturer or seller) of goods, rather than the good themselves. For example, the brand name “Quaker”, unlike the generic term “oatmeal”, is a trademark that identifies a particular source of cereal. A “service mark” similarly identifies the source of services. Trademark and service marks are relied upon to distinguish goods and services ofone manufacturer or merchant from those of others. To avoid deception of confusion of the public, the law prohibits the use of marks that are the same as or confusingly similar to an established trademark or service mark on similar goods or services.

Developing Rights

Rights in trademarks and service marks are developed through use of those marks, in the United States, in connection with goods or services in a manner identifying the source of the goods or services. To develop trademark rights, the goods should be shipped or sold with the mark affixed thereto or to the goods’ containers, tags, or displays associated therewith. Use on packing invoices, advertising brochures or price lists normally is insufficient to develop trademark rights. The sale or shipment generally must be bona fide so as to demonstrate intention to presently use the mark. To develop service mark rights, the services should be rendered and the mark used or displayed in connection with their sale or advertising.

Proper use alone does not ensure acquisition of exclusive rights in a trademark or service mark. Someone else may have superior rights in that or a confusingly similar mark for those or similar goods by virtue of prior use. Such superior rights could preclude your use of the mark. Accordingly, a trademark search generally is advisable before adopting a mark.

Federal Registration

Trademarks and service marks may be registered in the PTO. A mark to be registered in the PTO must, among other things, be used in interstate commerce and not be confusingly similar to marks previously used on similar goods or services. In addition, generic terms for goods or services are not subject to registration, nor are terms descriptive of goods or services except under special circumstances. Registration does not develop trademark rights and does not necessarily mean that the registrant has the right to sue the mark, but registration does provide several benefits.

Registration, in some circumstances, may expand the territorial scope of exclusive rights. A trademark registration, which remains in force for twenty years, provided that an affidavit of use is properly filed during the sixth year of registration, constitutes prima facie evidence of validity and ownership of the mark. The difficulty of invalidating a registered trademark becomes greater if an affidavit is filed with the PTO during the sixth year of registration stating that the mark has been in continuous used on the goods or in connection with the services in commerce. Registration also improves the chances or recovering adequate monetary relief for infringement.