In the increasingly online commercial market place, where brand identification is crystallized in consumers’ minds in a matter of seconds, it is crucial to secure as many rights in your business assets as possible to develop and spread your business goodwill while protecting against infringement by third parties trying to take advantage of your hard work and creativity.
Trademarks and Service Marks
Trademarks identify particular goods, while service marks identify particular services. A trademark can be a word, a name, a symbol, or a device, or any combination thereof used by a person to identify and distinguish his or her goods, including a special product, from those made and sold by others as well as to indicate the source of the goods, even if the source is unknown.
Protect Your Business, Register Your Mark
With a wide-range of trademark experience, the firm represents clients in all areas of the trademarking process including conducting trademark searches to determinate the availability of a particular mark for registration (which also helps to guide your choice of business or product name), registration of your chosen trademark including responding to any hurdles that may be raised during the process by the trademark attorney who reviews your application, and post-registration maintenance, policing and renewals. We also advise on effectively guarding against trademark infringement and dilution, blurring (where your trademark is used by a competitor to identify non-competing goods, which dilutes the unique and distinctive significance of your mark), tarnishment (where your trademark is used by another in a degrading or ridiculing manner) and international trademark protection as necessary to meet your business needs and ideals.
We also advise clients on the propriety of using meta tags (relevant keywords used by search engines to index pages, allowing Web users to find tagged pages in searches) as well as on the use of keyword advertising (where advertisers pay search engines to show their ads or sponsored links when computer users search for particular key words).
Although trademarks arise from use alone and without registration, there are significant and important reasons to register. Registration establishes constructive notice to others by providing a public record of claim, provides evidence of ownership and gives you the right to invoke federal court jurisdiction in a dispute. Registration also serves as the starting point for applying for registration in foreign countries. Further, once your trademark is filed with Customs, your registration can help you stop imports of infringing foreign goods from entering the U.S.
Trademark infringement occurs where another has used your mark without your permission on his or her product or in connection with a product or service in such a way that the consuming public would be confused as to the source of the product or service. Specifically, it is necessary to show that you have a valid trademark, that the defendant used your trademark, that the defendant’s use of your mark occurred in commerce, that the defendant used your mark in connection with the sale or advertising of goods and that the defendant used your trademark in a way that was likely to confuse consumers. Trademark dilution occurs under federal law when your famous mark is used in a way that dilutes the distinctive quality of the mark either through blurring or tarnishment, and occurs under state law where your trademark has “selling power” and has subsequently been blurred or tarnished.
Federal law provides the main and most extensive source of trademark protection. If successful in a trademark infringement action, you will be entitled to a wide range of legal remedies including injunctions against further infringing action, the defendant’s profits, the damages you sustained and the costs of the suit. If you are able to show bad faith, your damages may be tripled. In a dilution action, you will be entitled to injunctive relief and damages will be available to you if the defendant willingly traded on your goodwill in using the trademark.