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What Exactly Is A Trademark Or A Service Mark? What’s The Difference Between Those Two?

A trademark is a type of intellectual property, along with patents and copyrights. Trademarks specifically are used to protect words, phrases, designs, or combinations of those things, and even sounds in certain situations. Logos are often protected by trademark registration. The purpose of a trademark is to identify your goods or your services and then distinguish them from the goods and services of others so that the consumer knows what the origin of that good or service is.

A service mark is just a type of trademark that is used specifically with a service, such as a law firm. A trademark is related more so to a good. However, the word “trademark” is used to refer to both in a more general sense, so when you prepare a trademark application, the word “trademark” refers to both goods and services.

How Do I Get The Rights To A Mark? Do I Have To Register My Mark In Order To Acquire Rights To It? What Are The Benefits Of Registering A Mark?

Trademark rights begin upon use, not upon registration. Just by using your mark in commerce, you are already obtaining what are called common law rights, which give you protection. Your rights are, however, limited to the territory where you’re using that mark. So, for example, if I’m using my trademark in Miami, Florida, I don’t have common law trademark rights in Nebraska because my usage is restricted to Miami, Florida. While common law rights provide benefits without registration, that restriction of protection is one of the main limitations.

On the other hand, if you were to register a federal trademark, then you would have rights in Miami, Florida, in Nebraska, and across the United States. Another benefit of a federal registration would be the use of the ® symbol, which indicates that you are federally registered. While many people are familiar with the ™ symbol, it has no real significance other than saying that you are using that mark as a trademark; it does not mean that the mark in use is registered. By having the ® symbol, others will know that your mark is federally registered and protected.

Another benefit of a federal registration is that, if someone infringes on your mark, you have presumed ownership of the mark and can collect damages against that person or entity, which you are unable to do if your mark is not registered. In addition to your damages, you can receive attorney’s fees and even any profits that the infringer received by infringing on your mark. That is a huge plus.

You can also record your trademark registration with the U.S. Customs and Border Protection, which prevents counterfeiters from importing counterfeit goods with your mark into the United States—another huge plus.

Finally, after five years of registration, you get what is called an incontestable mark, meaning people cannot attack the validity of your mark for reasons that they would have been able to attack it before the five-year mark. As you can see, there are many benefits to registration.

How Can I Find Out If Someone Else Already Has Rights To My Mark?

What we suggest is doing a trademark search. There are a lot of programs that offer this service; however, it is important that you get it done through an attorney because an attorney will actually be able to analyze those results for you and explain what they mean. You can get what is called a thorough trademark search, which reports not only if someone is using your mark, but also if they are using anything even remotely similar. A professional such as an attorney will be able to tell you if one of those similar marks will be an issue in you applying for trademark registration. This is important because you can be denied registration, not only based upon someone already using your exact mark, but also something “confusingly similar.”

I Use A Slogan To Advertise My Company’s Services. Should I Register That Slogan As A Service Mark, Or Should I Copyright It?

A slogan can be registered as a trademark. Whether it is a service mark or just a trademark depends on whether you are using that slogan in relation to a good or service. If you are using it related to a service, then it would be a service mark.

For more information on Trademark Law in Florida, an initial consultation is your next best step. Get the information and legal answers you are seeking by calling (305) 912-4247 today.

Portalatin Law Firm

Call Now For A Consultation
(305) 912-4247

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