Trademark Information

With Frequently Asked Questions

Click to View Frequently Asked Questions About Trademarks

Utah Attorney Protecting Your Brand Nationally

Your trademark is your identity. Just like you need to be vigilant in protecting your identity, you need to be vigilant in protecting your mark. Registering your trademark helps protect you from "identity" theft in the form of counterfeit goods and services and unfair competition. Registering your trademark can be a complex legal process, and having an experienced attorney can help you avoid unnecessary time, expense, and heart ache.

About Trademarks

A trademark is anything you use to identify your goods and/or services to the world, just as your own name identifies you. Most are words, some form of graphic design, or a combination of word and design. They can either be registered by the federal government or, where available, a state government. They can also be established by using the mark appropriately. Therefore, that there are two trademark classifications: common law and registered.

It is not necessary to register your mark for it to have rights – it can exist and be protectable in your home state or (wherever you used it) merely by the fact you are using it. However, there are several benefits to registering your mark. These include: a public notice of ownership, constructive use in all fifty states, a legal declaration of your rights to the mark and the ability to use it, expand it, and protect it. You can also gain the ability to more easily obtain protection for your mark in other countries.

Trademarks Symbols and Types

There are several different trademark symbols. They include:

® This symbol means the mark is federally registered. It may be used for either a trademark or service mark.
TM This symbol means that the mark is claimed. It may or may not be in the process of being registered, and may even be registered. It also may or may not be protectable. The TM marking is generally used for physical goods.
SM Like the TM symbol, this symbol means that it is claimed, and generally refers to a service.

Trade Dress

The image and identity you create as a whole when packaging your goods for sale or when advertising your serves is called a "trade dress." While not a mark, per se, a distinctive trade dress is protectable under Federal and most state laws.

Download a Step-by-Step Guide to Trademarks

Download a Trademark Guide

Contact an Experienced Trademark Attorney

If you would like more information regarding trademarks, how they work, and the registration process, please visit our Trademark FAQ section below for answers to common questions.

For additional questions, or including questions regarding your particular mark, do not hesitate to contact us. We would love to schedule your complementary strategy session and help you through any questions or problems you might have.

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Frequently Asked Questions About Trademarks

A trademark can be anything you use to identify yourself and your goods and/or services in commerce. Think of them as your name. How did your teacher know whose test was whose when grading them? You put your name on it. It's the same idea. Most trademarks can be categorized as "word marks" (names) or "design marks" (logos).

Trademarks are what we like to call a "bootstrappable" right. You create them by pulling yourself up your own bootstraps. Use the mark and, if no one else is using it, you will naturally create goodwill and secondary meaning in the mark that associates it with you and creates a common law trademark. That is why you apply for a "grant" of a patent, but you "register" a trademark. One must be given to you; the other you create yourself and must let the world know.

No. Trademark rights are created by use, not registration. In fact, while you may file for registration before you actually use the mark, you must use it in interstate commerce before it will finally register. Many trademark owners even decide to forego the registration process entirely and just rely on the common law protections.

Registration of a trademark is treated as if the mark is in use everywhere in the United States. Common law rights only accrue where you use them. So if you only are selling your goods in two states, you have common law rights in those two states. Registration is good in all fifty and can be used as a springboard to register rights outside the United States. Registration also provides assumptions as to the strength and ownership of the trademark in the event you have to sue somebody (or are sued) and can be used as a basis for customs inspectors to seize imported counterfeit goods.

You must be using the mark on goods or using it to advertise services in interstate commerce. Interstate commerce means that you must be crossing state lines (not just your home state). Using the trademark on the goods means that you must have the trademark physically on the goods themselves or their packaging.

After you file for registration of a trademark, it will be examined to determine if anyone else is using the mark for similar goods/services (likelihood of confusion) and if the mark is even capable of identifying your goods apart from someone else's similar goods (secondary meaning). If there is someone else using the mark for the same or similar goods/services, you will not be able to register the mark and may have to choose something else before that someone else sues you. If the mark is merely descriptive (or worse, generic) of what you are selling, it will lack the ability to distinguish your goods from others' and will be refused.

Assuming all goes smoothly, you can register a trademark within a year of filing.