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March 23rd, 2011

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. Our contracted patent attorneys can assist clients in the chemical, pharmaceutical, medical devices, biotechnology, communications, electronics, mechanical, design, consumer products, Internet, and software industries with trademark and other intellectual property matters.

Legal Significance Concerning Federal Trademark (TM) Protection

The use of the trademark without federal registration provides only limited geographical coverage, may lead to the loss or limitation of trademark rights and may increase exposure to potential liability for infringing the trademark rights of others.
Federal TM protection provides constructive notice to the public of the registrant’s claim of ownership of the mark.

Federal TM protection enables the U.S. Customs Service to seize infringing goods at the port of entry without any court proceedings.

Federal TM protection enables a TM owner who uses the TM in commerce between as little as two states, i.e., South Carolina and Georgia, to enjoy nationwide protection.
Financial institutions may be more inclined to make a loan based on a recorded security interest in a federally registered TM.

Federal TM protection provides the ability to bring an action concerning the TM in federal court, thereby allowing the plaintiff to receive statutory damages and other types of damages, i.e., in TM counterfeit cases, statutory damages can range from $500 to $1,000 per counterfeit mark, per type of good or service sold, offered for sale, or distributed. Also, actual damages attributable to the infringement may be acquired. A court may also consider collection of a reasonable royalty and infringer’s profits.

Important Difference Between The Symbols “TM” and “®”
Typically, a trademark for goods appears on the product and/or packaging utilizing the “TM” or “®” designation to alert the public of a party’s claim. However, you may use the federal registration symbol “®” only after the USPTO actually registers a mark—not while an application is pending. The symbol “TM” may be used regardless of whether you have filed an application with the USPTO. Use of the “TM” symbol alerts the public that you intend to utilize your particular mark to identify and distinguish your source of goods or services. It also provides the owner of the mark with important priority rights in the mark.

Service Mark
A Service Mark trademark (SM) is a word, phrase, symbol or design, or a combination of words, phrases, symbols or designs, that identifies and distinguishes the source of a service rather than a product.

Trade Dress
Trade dress is a distinctive, nonfunctional feature, which distinguishes a merchant’s or manufacturer’s goods or services from those of another. The trade dress of a product involves the “total image” and can include not only the configuration, shape and design of the goods, but also the color of the packaging as well.

Claiming Trade Dress Protection
To establish a superior right to your unique trade dress, your trade dress must indicate or be distinctive towards your business or product. This is accomplished by showing that the public associates your trade dress with a particular source. You can also claim trade dress protection if the public associates other products with your trade dress and believes the source to be your company, causing a likelihood of confusion.

Trade Secret
A trade secret is information, including a formula, pattern, compilation, program device, method, technique, or process, that derives independent economic value, actual or potential, from not being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

In more basic terms, a trade secret is any valuable business knowledge or information, which affords economic advantage over others and is subject to reasonable efforts to maintain its secrecy. Generally, a trade secret will be protected from exploitation by those acquiring its access through improper means or parties. Trade secret misappropriation is similarly related to a type of unfair competition. Remedies for infringement of a trade secret include damages, profits, reasonable royalties, and injunctive relief.

To initiate your FREE INITIAL consultation, download the Official Record of Trademark form and follow the instructions provided therein.

Click here to visit the United States Patent and Trademark Office (USPTO) Website

Call 843-280-2400 or e-mail Registered Patent Attorney P. Jeff Martin directly to schedule a free initial consultation concerning trademark searches, state or federal trademark application filings, and other trademark issues.