In the Know
Registering a trademark

Getting Technical ö what is a trademark?
A trademark is any symbol, such as a word, number, picture or design, used by manufacturers or merchants to identify their own goods and distinguish them from goods made or sold by others. A trademark identifies the source of a product and fixes responsibility for its quality.

The name of a type of product cannot be a trademark, because every maker of that product is free to use its name. Sony, for example, is a well-known trademark for televisions, radios and audio equipment, but no one can have trademark rights to the word television or radio. On several occasions, however, words intended by manufacturers to be used as trademarks for new products were instead used by customers to name the products; such words then lost their legal status as trademarks. Examples include aspirin and escalator.

U.S. Trademark Law
The current federal trademark registration law in the U.S., the Lanham Act, was enacted in 1946. Under the common law in each state, a seller who uses any symbol as a trademark acquires the legal right to prevent other sellers from using a similar mark. Many states register trademarks to maintain a public record and allow others to search the record before choosing and using a new trademark. In the federal Lanham Act, Congress has provided a nationwide register of marks for sellers who participate in interstate commerce. Although a trademark owner can rely on state common-law rights by merely using the mark, federal registration provides valuable extra protection. For this reason, many sellers federally register their trademarks.

In the U.S., a symbol cannot be registered as a trademark until goods or services identified by the mark have actually been sold. Thus, a person cannot select a trademark and register it before use. The law in most nations, however, allows a mark to be registered before actual use, although many countries require use on goods within a certain number of years after registration.

Filing a Trademark Application
Trademarks are federally registered in the U.S. Patent and Trademark Office of the Department of Commerce (USPTO). Trademark applications may be filled online using TEAS - the Trademark Electronic Application System (TEAS). TEAS allows applicants to fill out an application form and check it for completeness, and then submit the application directly to the USPTO over the Internet. Or, applicants can contact the Trademark Assistance Center at 1.800.786.9199 for a hard copy of the Basic Facts brochure, or a paper form. Paper forms are not processed as quickly as those submitted electronically, however.

Understanding the Process
When a seller applies for registration, the office will examine the application to see if the mark meets the conditions of federal law. The most important condition is that the trademark is not confusingly similar to one previously registered or used in the U.S. On approval of the application, the trademark is published in the official gazette to enable any objections to be heard in an opposition proceeding. If a registration is granted, it lasts for 20 years and may be renewed at 20-year intervals for as long as the trademark is still in use. Once a federal registration has been obtained, the owner may give notice by using the symbol R next to the trademark. The total time for an application to be processed may be anywhere from almost a year to several years, depending on the basis for filing, and the legal issues which may arise in the examination of the application.

For more information about tools you can use for your business, login to the PBFN member Web site and access the business resources section.

Sources:

1. U.S. Patent and Trademark Office of the Department of Commerce
2. Small Business Association
3. Microsoft's Encarta96 Encyclopedia