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Mainline Business Concerns
Why should I federally register my trademark?
A business can have its expansion efforts limited if it fails to obtain a federal registration. A federal registration provides prima facia (i.e. rebuttable) evidence of exclusive rights in the mark. After five years of registration the rights become incontestable (i.e. non-rebuttable), eliminating nearly every defense to trademark infringement. This aspect can save tens of thousands of dollars if litigation is ever needed and may help the avoidance of litigation all together.
A federal registration provides constructive notice of the holder's trademark rights, allows one to proceed in federal court (if necessary), and provides for special statutory remedies.
These benefits are obtained for the nominal cost of obtaining and maintaining federal trademark registrations.
How do trademark rights protect the owner?
Trademark infringement occurs when another uses a confusingly similar trademark. An infringer is trying to reap benefits from or shed responsibility for their actions on the trademark holder. Thus, the trademark laws protect the owner from diversion of sales or market-place responsibility as a result of a competitor's bad acts.
How do trademark rights protect the public?
Trademarks indicate source, sponsorship, affiliation or other business relationship, and are used to prevent consumer confusion. As a result the public uses trademarks so they know who made the product or who stands behind the service. Trademarks are in essence the proper name, much like your given and surnames, and are used to know exactly who is providing this product to the customer. The benefits flowing to the customer include consistency of quality and character so that the customer does not need to open the packaging on each product to know the quality of what is inside.
What is the importance of a trademark as a commercial asset?
A trademark is much like a proper name, just like your proper name includes your given and surnames. It is the identifier of the product or service in that it separates the associated goods and services from all other competing goods and services, just as your name distinguishes you from other people. When considering the importance, try to find a single advertisement anywhere that does not include at least one trademark on the advertising.
Consider the confusion that would be present if people did not have given and surnames. We would only be able to refer to each other as "hey you." This would hardly be helpful when you want to know where the person can be found. "Where is hey you?" Consider how you would tell someone which brand to purchase or give a referral without using a trademark. Trademarks are critically important assets and should be protected as such.
Can a business be prevented from expanding if it does not obtain a federal registration?
Yes. A company cannot use its trademark outside the area of geographical protection if another already has the rights outside that area. See Question "What is the geographic scope of protection of a trademark?" on the Types of Trademarks and Trademark Registrations page.
What is trademark infringement?
Trademark infringement occurs when a new comer or junior user adopts a trademark that is likely to be confused with the senior user's trademark. To determine whether a likelihood of confusion exists, courts consider factors such as: Strength of the mark, similarity between the marks, proximity of the goods in the marketplace, actual confusion, intent of the junior user, relatedness of the goods, degree of care exercised by the customer and other such factors. The key is whether there is a likelihood of confusion. Fifteen percent (15%) confusion is typically considered too much confusion.
About the Author:
N. Paul Friederichs, founder, started practice as a patent attorney in 1992 at a major Minneapolis, Minnesota law firm where he was the highest performing associate. In 1993, he started and developed Friederichs Law Firm with his father. Throughout this time Paul�s experience was heavily weighted toward litigation. He served such clients as Tonka Toys, American Harvest and Boston Medical.
He can be reached at http://www.angenehm.com/