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VOL. 127 | NO. 47 | Thursday, March 8, 2012




Trademarks and How To Preserve Them

By H. Roy Berkenstock

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H. Roy Berkenstock 

A trademark is the symbol used by business to identify a product or service so that consumers can distinguish that product or service from those of a competitor. A trademark can have both visible and phonetic characteristics, which help to make is easy for consumers to remember.

A business should ensure that its trademark meets all legal requirements, especially if it is to be registered with the U.S. Patent and Trademark Office (USPTO). The process to register a trademark is not complicated. It can be done online, but registration must conform to USPTO requirements or the application will not be accepted.

There are two trademark applications: one for a trademark already in use in interstate commerce and the other for a trademark not yet in use in interstate commerce. The application will go through an examination process at during which the reviewer will approve it for accuracy and completeness, and make sure no other trademarks already are registered or in the process of being registered that might “likely cause confusion” in the marketplace.

When the trademark examiner is satisfied that the trademark is distinguishable from others, public notice will be issued that the trademark office intends to issue a registration of the mark and the public is given a chance to object. If there is no opposition, then a certificate of registration will be issued.

A trademark must be used. According to trademark law, “use” is the appearance of the mark on the goods or in connection with the use or promotion of the services. The consumer associates “It’s Finger Lickin’ Good’’ with Kentucky Fried Chicken Inc. In other words, the trademark needs to be placed on the goods or packaging received by the consumer.

A federal trademark registration is good for 10 years. However, it can be extended for an additional 10-year term for a fee and confirmation of continued use. A declaration of continued use must be filed in the sixth year to keep the registration active for the remainder of the term.

Distinctiveness is the key to the function of a trademark, which separates it as a symbol from other goods and services. For a trademark to distinguish a product or service, it must be used.

H. Roy Berkenstock is a member of Wyatt, Tarrant & Combs’ Intellectual Property Protection & Litigation Service Team. This column is part of an occasional series on intellectual property issues for businesses and institutions.

RECORD TOTALS DAY WEEK YEAR
PROPERTY SALES 0 133 1,342
MORTGAGES 0 131 1,047
FORECLOSURE NOTICES 0 19 170
BUILDING PERMITS 0 305 3,056
BANKRUPTCIES 20 118 736
BUSINESS LICENSES 27 53 329
UTILITY CONNECTIONS 0 0 0
MARRIAGE LICENSES 0 0 0