What are the Best Tips for Trademark Protection?

Terry Masters

There are four levels of trademark protection that a business can secure for its text, logos and other symbols that uniquely identify its products: common law, local, national and international. As a business owner advances his rights in a trademark from the most basic level to the most advanced, he must be aware of the intricacies inherent in the development of intangible property rights. The best tips for securing and protecting a trademark at each level concern use, notice, official registration and preservation over time.

Part of an application to register a trademark.
Part of an application to register a trademark.

Common law trademark protection provides the owner of a mark that uniquely identifies products with automatic rights in the mark as soon as it is used in commerce. Intangible property rights are sometimes difficult to prove and expensive to defend. If a business owner relies solely on common law for trademark protection, he should be sure to retain incontrovertible proof of the earliest use of the mark in commerce.

Certain countries enable trademark protection at the local level. For example, states in the U.S. allow businesses to register a trademark with the secretary of state’s office. This registration protects rights to the mark within the state. At this level, the best way to protect a state trademark and make sure the rights are expandable as the business grows is to ensure that the mark is unique, not only locally but also nationally, by searching all available databases for any other mark that too closely resembles it.

The most important advice for trademark protection is to register the mark at the national level. All countries offer national trademark registration. In the U.S., for example, the U.S. Patent and Trademark Office grants national rights to trademarks. Registration makes it easier to pursue infringement and, in many cases, provides for statutory damages so the trademark owner is not burdened by having to prove actual harm was caused by the infringement.

International registration of a mark is the most advanced trademark protection available and can be secured in tandem with national registration if the country of origin is party to international trademark treaties. To prepare a mark for any sort of registration, including international registration, make sure the mark is distinct and does not present the likelihood of confusion with any other worldwide mark. The less generic and more fanciful the mark is, the easier it will be to register and defend.

Use the mark in as wide a geographical area as possible as soon as possible by using it on the Internet. Trademark protection is implicitly limited by the underlying rule that trademark rights extend geographically only as far as the goods have actually reached in commerce. Provide notice of rights in the mark by using the ™ symbol for unregistered marks and ® for registered marks. Finally, preserve your rights in a mark by using the mark in commerce on a regular basis, periodically checking for infringement, and defending your mark against any infringement that happens.

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