How Does Trademark Law Work?


This post is part of the weekly Q&A section. Just use the contact form if you want to submit a question.

Shrihari asks:

Are really trademarks given by use and not by registration ? You say “Daily Blog Tips” is your trademark. But i can still apply to register “Daily Blog Tips” as my trademark. Right ? In that case, i’ll have the rights to take your blog down. Am i right ? Or, am i missing anything ?

First things first, what is a trademark? According to the United States Patent and Trademark Office, a trademark is “a word, phrase, symbol or design, or a combination of words, phrases, symbols or designs, that identifies and distinguishes the source of the goods of one party from those of others.”

Notice, therefore, that trademarks are different from copyrights (which protect original works like articles and pictures) and from patents (which protect inventions).

How do you acquire a trademark? Simply by using it in a legitimate way. If you have being doing business under the name of “XYZ Company” for years, for example, you could claim trademark over that name (or logo).

Now, one can also apply for a trademark registration with the United States Patent and Trademark Office. Why should one, if trademarks are given by use? Simple: because the registration will give you several benefits, including:

  • the ability to bring people who are violating your trademark to federal courts
  • a public notice that you claim ownership over that trademark
  • the ability to register your trademark in other countries
  • an overall stronger stance when defending your trademark

You say that you could still apply to register a trademark that some other people own by use, for example Daily Blog Tips. That is correct, you can apply for it, but I doubt that you would be able to gain ownership over it.

For one thing, when you apply for a trademark, you must provide the “Basis for filling.” That is, you must explain where you are currently using that trademark. The most common “Basis for filling” is use of the trademark for commercial purposes. So you would need to be using the trademark before applying for registration.

Secondly, even if you managed to use a trademark that you don’t own (say by creating a fake website or business) and provide the “Basis for filling,” the trademark office would still have its attorneys checking the market (and I am sure they include the Internet these days) for conflicting trademarks. If they find someone who is already using the trademark you are applying to own, they will reject your application.

Finally, let me make a note about the trademark symbols. Anyone claiming a trademark can use the TM letters next to its name or logo. You don’t need to have a trademark registration for that. The ® symbol, on the other hand, is to be used only by people that own registered trademarks.

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