TRADEMARK FACTS

A trademark is a distinctive sign or indicator of some kind which is used by an individual, business organization or other legal entity to identify the source of its products and/or services to the public, and to distinguish its products or services from those of others.  Trademarks may also include the brand, label, name, signature, word, letter, numerical, shape of goods, packaging, combination of colors - or any combination thereof; which is capable of distinguishing goods and services of one person from those of others. It must be capable of graphical representation and must be applied to goods or services for which it is registered.

The owner of a registered trademark may commence legal proceedings for trademark infringement to prevent unauthorized use of that trademark. However, registration is not required. The owner of a common law trademark may also file suit, but an unregistered mark may be protectable only within the geographical area within which it has been used or in geographical areas into which it may be reasonably expected to expand.

Certain exclusive rights attach to a registered mark, which can be enforced by way of an action for trademark infringement, while unregistered trademark rights may be enforced under the common law.

It should be noted that trademark rights generally arise out of the use and/or registration (see below) of a mark in connection only with a specific type or range of products or services.

The law considers a trademark to be a form of property. Proprietary rights in relation to a trademark may be established through actual use in the marketplace, or through registration of the mark with the U.S. Patent and Trademark Office. In many jurisdictions, trademark rights can be established through either or both means.

A registered trademark confers several exclusive rights upon the registered owner, including the right to exclusive use of the mark in relation to the products or services for which it is registered. The law in most jurisdictions also allows the owner of a registered trademark to prevent unauthorized use of the mark in relation to products or services which are identical or "colorfully" similar to the products or services, and in certain cases, prevent use in relation to entirely dissimilar products or services. The test is always whether a consumer of the goods or services will be confused as to the identity of the source or origin.

In most systems, a trademark can be registered if it is able to distinguish the goods or services of a party, will not confuse consumers about the relationship between one party and another, and will not otherwise deceive consumers with respect to the qualities of the product, and is "distinctive."