Trademark Frequently Asked Questions by Kelley Way
Let’s welcome back monthly columnist Kelley Way as she shares with us “Trademark Frequently Asked Questions.” Enjoy!
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Most of my trademark clients come to me with questions, even before they’ve decided to hire me.
There’s a lot of confusion out there about trademarks and how they work. Here are some trademark frequently asked questions that I see on a regular basis:
1. What is a trademark?
There’s a fairly lengthy description in the law books, but what it boils down to is something that serves as a source identifier in the marketplace.
Consumers want to be able to identify where a product or service comes from, and often make purchasing decisions based on the reputation of the seller.
Sellers want to build that reputation so that consumers are more likely to buy from them or try new products they put out, and the best way to do that is to make it easy for consumers to identify who made the product.
Anything that serves to identify the seller can qualify as a trademark.
The most common trademarks are company names, brand or product names, logos, and slogans, but you could also trademark a shape, sound, color, or even a smell, as long as the consumer will associate it with you.
2. How long does a trademark last?
Trademark is a use it or lose it proposition.
As long as you are using it to sell your product or service, it will still qualify for trademark protection.
However, registration with the government needs some maintenance to stay active.
Every ten years you need to submit an affidavit telling them you are still using your mark, otherwise, the registration will be cancelled.
3. How do I get a trademark?
All you need for a trademark is to use it in the marketplace to identify the source of your product or service.
However, you can get more protection by registering it with the government.
You can register with your state, or with the U.S. Patent and Trademark Office.
Since federal registration gives you nationwide protection and a foot in the door for international registration, it’s probably the better way to go.
4. How long does trademark registration take?
The length of time varies, depending on whether the trademark examiner has issues with the application or someone objects to your use.
Anticipate a minimum of six to nine months, longer if any issues come up.
5. Do I need an attorney to register my trademark?
A trademark application does not have to be submitted by an attorney, so in theory, you could submit your own trademark application.
If you want to go that route, make sure you do a lot of research on the U.S. Patent and Trademark website first; it’s very easy to make a technical error that will slow down the application process or cause your application to be rejected entirely.
The benefit of an attorney is that they know how to fill out the form properly and what arguments are likely to persuade an examiner to reconsider an objection or outright rejection.
If there’s a trademark frequently asked question that I missed, please feel free to send it to me at kaway@kawaylaw.com.
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ABOUT THE AUTHOR
Kelley Way was born and raised in Walnut Creek, California. She graduated from UC Davis with a B.A. in English, followed by a Juris Doctorate. Kelley is a member of the California Bar, and an aspiring writer of young adult fantasy novels. More information at kawaylaw.com.
