WHAT IS A TRADEMARK OR SERVICE MARK?
A trademark or service mark is a word, name, symbol, logo, design, or any combination thereof that distinguishes the goods and services of one seller or provider from those of others and indicates the source of the goods and services.
Federal registration of a mark is not required but carries several advantages, including notice to the public of the registrant’s claim of ownership of the mark, legal presumption of ownership nationwide, and a presumption of the exclusive right to use the mark on or in connection with the goods and services identified in the registration.
A registered trademark may be recorded with the U.S. Customs and Border Protection, who is authorized to seize imported goods at ports and borders in the United States if the goods violate the rights of a registered trademark owner.
WHAT IS THE LEGAL BASIS FOR TRADEMARKS?
The legal basis for patents was written into Article I, Section 8, Clause 8 of the U.S. Constitution:
“The Congress shall have the power . . . To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes.”
Because the basis of trademark law is the Commerce Clause, a mark must be used in commerce to be eligible for registration at the Trademark Office.
WHO REGISTERS TRADEMARKS?
The United States Patent & Trademark Office (USPTO) is the agency within the Department of Commerce and part of the Executive Branch tasked with the following general duties:
(1) granting and issuing of patents and the registration of trademarks; and
(2) disseminating to the public information with respect to patents and trademarks.
CAN STATES ALSO REGISTER TRADEMARKS?
Although federal registration provides the greatest scope of IP rights in trademarks, the owner of a mark can also or alternatively acquire trademark registration for their goods and services at the state level. In Florida, for example, the registration process for a state trademark is relatively trivial and can be carried out in parallel with the application process for a federal trademark.
