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(4) Other Notes

Trademark Selection (1)

Trademark Search (2)

Trademark Registration (3)

Other Notes (4)

TRADE-DRESS - Trademark protection is often available for product packaging, logos, as well as various other "marks" that most people would not consider capable of trademark protection, including colors and scents. If your product has powerful and unique advertising, various aspects of that marketing may be capable of trademark protection.

FOREIGN options must always be considered. It is possible to retain your U.S. priority filing date when seeking foreign trademark rights. This is critical if you ever expect to ship products out of the U.S. because most foreign countries give trademark rights to the FIRST TO FILE rather than the first to use the mark. If a competitor registers your mark overseas before you do, HE WILL GET THE RIGHTS TO YOUR MARK! Consult your attorney. A few minutes worth of legal counsel will save you thousands of dollars in the long term.

TRADEMARKS CREATE BRAND NAMES

Consumers are willing to pay a premium for brand name goods instead of inexpensive "generic" brands because people like to buy from companies they know and trust. Trademarks are the legal tools with which companies create these brand names.

Trademarks are words and/or symbols used to tell consumers about the source of the goods they purchase. Through use in commerce, these marks eventually create an identity that distinguishes a company from its competition.

Trademarks have been used for many years. Ancient guilds pressed a mark into their products (such as pottery). This guild mark allowed consumers to distinguish high quality guild pottery from cheap pottery made by non-guild members.

Trademarks serve about the same purpose today as they did in the days of the guilds. By placing your mark on your products, you allow the consumer to distinguish your goods from shoddy imitations. While your mark may have little value at first, a company’s trademark serves as a vessel to capture and retain the goodwill and customer satisfaction generated over the years. Satisfied customers will begin to seek out your products – and your trademark allows them to distinguish your product from the competition. The mark also serves as a shield to ward off the cheap knock-off products that will invariably appear and attempt to steal your customers.

The best time to develop a trademark is when you first start selling a new product or service. If you wait until you have used your mark for years, you may find that the mark is not capable of enforcement, or, even worse, that the mark is owned by a competitor.

It is important to realize that incorporating a company or filing a fictitious name (dba) DOES NOT GIVE YOU THE RIGHT TO USE THAT NAME! Part of developing a trademark is to search for a mark that is not currently being used by a competitor. If you use a mark that is owned by your competition, they will be able to order you to change your name even though you may have incorporated under that name or filed a dba for that name. Many businesses have been forced into bankruptcy because they were unable to afford to recall all of their products and change all of their advertising after receiving a cease and desist letter from their competition.

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