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How Do You Get a Trademark?

Written by: Shannon Moore

Article Overview: While some individuals choose to hire attorneys to walk them through the process of applying for a trademark, others choose to use a trademark research firm, which can cost thousands of dollars less. It is important to remember when hiring someone to do your research that they not only search through Federal and State trademark records for name similarities, but also Common-Law listings.

How Do You Get a Trademark?

While some individuals choose to hire attorneys to walk them through the process of applying for a trademark, others choose to use a trademark research firm, which can cost thousands of dollars less. It is important to remember when hiring someone to do your research that they not only search through Federal and State trademark records for name similarities, but also Common-Law listings.

Many people are under the impression that they can perform their own comprehensive search utilizing the help of search engines, in addition to the United States Patent and Trademark Office (herein referred to as the USPTO). While it is a good idea to become familiar with the USPTO website, individuals sometimes believe that the data they collect from this website is truly representative of the trademarked names which are currently being used. The USPTO’s website is never a thorough way to search the name you’re hoping to trademark! The website is not updated regularly, and in addition to this, you can ONLY search Federal trademark records on the USPTO, NOT State trademark records OR Common-Law records!

It is imperative to search Federal and State trademark records AND Common-Law records because it is the only way to ensure that your search was done in a comprehensive manner. Federal and State trademarks records are looking at businesses that have either a federally registered trademark, or those who have registered a state trademark. When these records are searched, any federal or state trademarks that are either pending or registered will be visible to the researcher. Common-Law records examine those businesses who are in business but not have necessarily filed for a Federal or a State trademark. When Common-Law records are searched, thousands upon thousands of newspaper articles, city business listings, periodicals, incorporation listings, DBAs, LLCs, etc. are examined for any name similarities. Although such businesses do not have a trademark, they might have "first-use rights" to the name. This could mean that they still have ownership over the name within their trade area AND the capacity to take legal recourse if they determine that your name and business is the same, or similar.

If the research proves clear, the next step is to prepare and file the application. This can be done by anyone; however, the USPTO is very particular about how the application is prepared, so it's best to leave it to professionals.

Three Steps -- Federal & State trademark search, US National Common-Law search and Application Preparation & Filing – and the Trademark could be YOURS!

Related Articles
  How to Register a Trademark
  Do You Need a Registered Trademark?
  Trademark a Name and Logo: Together or Separate?
  Why Trademark?
  What's the Point of Getting a Federal Trademark?

Article Tags: Common Law, Federal and State trademark, Federal and State trademarks, search engines, State trademark, trademark research, United States Patent and Trademark Office, USPTO, USPTO website



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Re: About: product production! - [quote="FreshGoods":1yq3rfuo]Most importantly,with all that has been said...when is it absolutely appropriate to patent your idea? Why do people file for patents if it is not necessary? I would really like to know this please. I appreciate your helpful tips a lot! THANKS.[/quote:1yq3rfuo] Hi FreshGoods, Don't forget that you can always patent your product yourself (or even incorporate your company or apply for a trademark or copyright) and without the help of a lawyer. It would save you a lot of money. For instance, if I got my Trademark filed by my lawyer, it would've cost about $1200+. But going through the process myself by simply reading the official brochure only cost about $450 total.
How to protect my trade mark? - What affirmative action can he take, at least commercially, other than to "continue to sell online and in a small number of stores?" What if his means are limited? How much additional burden on the trademark holder, who has already jumped through the hoops of registration and is actually marketing his product, is it fair to place? Trademark registration, to have any value, surely ought to amplify a trademark's holder's ability to defend his/her mark. But if a mark is continually vulnerable to attack from those with deeper pockets, then registration would appear to have little evident or useful purpose, except among like-sized, or similarly endowed entities. But if you mean that he ought to take legal action rather than commercial action, does not the same rule apply: that whoever can pay the most generally will win? How this fosters a healthy public policy environment is difficult to discern. Would not a system of bribery ultimately be more efficient and predictable, if not more honest in the naive sense?
Information about doing franchise business in China - CHINA’S FRANCHISE LEGAL SYSTEM Introduction Franchises has a history of more than one hundred years in foreign countries, now it has developed to be a mature business mode, and it is widely used in many countries, especially the developed ones. Recently, franchises has been developing fast in China, covering more than sixty industries and trades such as catering, retailing, clothes-washing, indoor decorations and gym. However, the market order of franchises is chaotic in some industries and areas. There are also some illegal and criminal activities under the guise of franchises. Under such circumstances, several important laws have been promulgated to regulate the commercial franchising activities. Applicable Legislation The main legislative provisions governing the commercial franchising in the PRC are: the Measures on Administration of Commercial Franchises; and the Measures on Administration of Archival Filing of Commercial Franchises; and the Measures on Administration of Information Disclosure of Commercial Franchises Qualification for Franchisors According to the laws, the franchisors as those enterprises who own such business sources as registered trademarks, enterprise logos, patents and proprietary technology, and license these business sources to franchisees. Firstly, the franchisors shall be enterprises, excluding other economic organizations and individuals. Secondly, the trademarks which can be licensed to franchisees shall be registered trademarks. According to the Trademark Law, the trademarks, whether registered or not, are protected under the laws, though there is difference in the vigor and extents of protection. It seems that the Ministry of Commerce has restrictions in recognizing trademarks, since it only provides “own trademarks to be licensed to others” at large, which causes chaos in practice. In the cases relevant to franchising disputes which we provided legal service to, all of them involve the situation that the franchisors granted licenses of non-registered trademarks or the trademarks which were in application to others, and when there was infringement on trademarks, the franchisors were unable to prevent infringement on trademarks. Then the interests of the franchisees could not be realized. What’s more, franchising activities with non-registered trademarks also, to some extent, encourage commercial frauds. Thirdly, the logos, patents and proprietary technology of enterprises are included in the business sources to be licensed to others for the first time, which enlarges the application scope of franchises and will improve the development of franchises. 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Information Disclosure Requirements and Regulation on Franchisors Information disclosure system is the core system of franchising. The laws provides that the franchisors shall establish and implement a perfect information disclosure system, and provide the relevant information and franchising contracts in written form, at least thirty days before execution of franchising contracts. It also sets out the specific provisions on the information which shall be provided by franchisors, including the basic conditions and commercial reputation records of the franchisors and their legal representatives, business sources owned by franchisors, abilities of franchisors to provide service to franchisees and management and supervision on business of franchisees, franchisee fees and the payments, and budgets for investment in franchising shops. To the franchisors that violate these provisions, the authorities in charge of commerce will order them to rectify, charge penalties and make public statements. Archival Filing and Public Announcement Systems To protect the franchisees’ lawful rights and interests, considering the asymmetric information between franchisors and franchisees, in addition to intensifying information disclosure requirements and regulating the activities of franchisors, the Measures also bring in the archival filing and public announcement systems. The Measures provides that the franchisors shall make a filing with the commerce administrative department within 15 days after the execution of franchising contracts for the first time. Anyone who intends to engage in any commercial franchise activities within a province, autonomous region, or municipality directly under the Central Government shall go through the archival filing formalities in the commerce administrative department of the people’s government of the province, autonomous region, or municipality directly under the Central Government where the franchisors are located. Anyone who intends to engage in any commercial franchise activities beyond a province, autonomous region, or municipality directly under the Central Government shall go through archival filing formalities in the commerce administrative department of the State Council. Any franchisor having been engaging in franchise activities before May 1, 2007 shall apply for archival filing at the commercial administrative department. The Ministry of Commerce has established the national network for archival filing work relating to commercial franchise. Any franchisor shall go through the archival formalities through the government website. The general public may obtain the following information through the government website of the Ministry of Commerce: (1)The registered trademark(s), enterprise mark(s), patent(s), know-how and other business resources of the franchisor; (2)The franchisor’s archival filing date; (3)The location of the legal business place, contact information and name of the legal representative of the franchisor; and (4)The location of the business place of the franchisee(s) within China. The authorities in charge of filing will cancel the archival filing if there is any following activities of franchisors, and make public announcement on the government website: (1) the business licenses of the franchisors have been withdrawn by the registration administrative authorities for illegal business; (2) the authorities in charge of filing receive judicial suggestion letter on cancellation of archival filing from the judiciary for illegal business by franchisors; (3) the franchisors conceal the relevant information or provide false information, which has been proved; (4) the franchisors carry on cancellation by themselves. In addition, the illegal activities of the franchisors will be announced to the public. By Erex Chen, a Chinese lawyer based in Shanghai.


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