What is a Trademark?

A trademark is any word, phrase, symbol, design, shape, or combination that identifies goods or services. It is how the customer recognizes your business, products, or services in the marketplace. A trademark identifies the source of your goods or services and provides legal protection for your brand. It also helps protect against counterfeiting and fraud. 

For example, Coca-Cola trademarked its name. But it also trademarked its distinctive curved bottle. In a crowded marketplace, a trademark makes your product visually stand out from others.

But, a trademark does not mean that your company legally owns a particular word or phrase. Rather, the legal protection extends only to the use of the word or phrase with your specific goods or services. Similar trademarks can represent two products if the products are very different.

What Can Be Trademarked?

As mentioned above, a trademark can include a word, phrase, symbol, design, shape, or a combination of these things. For example, look at Mcdonald’s. It has trademarked its name and the famous Golden Arches. But its trademarks also include:

• Happy Meal
• Extra Value Meal
• Super Size
• World Famous Fries
• I’m Lovin’ it
• Any food name including, “Mc” or “Mac”

Trademark Acquisition

The most common way to acquire trademark rights is to create and use the trademark. A business creates a trademark when it develops creative and unique words, logos, taglines, and phrases to name or describe its products. A business does not have to register a trademark to own it. Rather, it owns a mark when it begins using it.

These common law trademark rights are limited and only apply to the geographic area where you do business. If you want national rights, you’ll need to register your trademark with the U.S. Trademark and Patent Office (“USPTO”).

Suppose you use a logo as a trademark for your small, local candle business. If your business grows to a larger region, or if you sell online, you should consider registering your trademark for broader protection. 

A business can also acquire trademarks in other ways. For example, a business can acquire trademarks through a business purchase.

A well-crafted asset purchase agreement is essential. It should include language that transfers all trademark rights, including those registered, those not registered, or even those not formally identified. You should also acquire the goodwill associated with any trademark your business buys. Goodwill is the mark’s reputation that has built up over time. 

Also, your business may hire a creative or marketing agency to design logos or other marks. It is essential the written agreement between you and the contractor reflects the transfer of all rights in the intellectual property to your business. 

There can be many complications when acquiring trademarks from a third party. An attorney can handle many of those complications in a good contract. Davis Business Law can help with that.  

Trademark Attorney Services

A business should hire an experienced trademark attorney if it is or could be engaged in trademark infringement litigation. It should hire an attorney if it is buying or selling a trademark as an asset or having a mark created for it. It should also consider hiring a trademark attorney to help register a trademark with the USPTO.

Trademark Litigation

Trademark infringement litigation generally occurs when one business wants to stop another from using its trademark. The lawsuits are typically in federal court. The suing party typically seeks damages, injunctive relief, and – in exceptional cases – attorney’s fees.

Trademark infringement litigation can be very complicated. If someone sues your company, hiring an attorney is essential. The beginning steps, including filing an Answer, can affect your rights. Davis Business Law’s Tulsa trademark attorneys are experienced litigations and can help. 

Also, whether your business is prosecuting or defending a lawsuit, our firm can help with strategy questions such as:

• Challenging the claimed trademark
• Denying that the trademark owner has proved infringement
• Asserting a defense to the alleged infringement
• Negotiating a settlement of the lawsuit by, for example, agreeing to take actions to avoid the likelihood of confusion

Counseling 

As discussed above, buying, or selling a trademark as part of an asset purchase requires a carefully crafted asset purchase agreement. Creating that document is not something a business should do by downloading a generic form online. Nor should your business quickly sign an asset purchase agreement the other side prepared – hire an attorney to review it for you. 

Work with Trusted Trademark Attorneys

If your business has a trademark it wants to protect, or if you are involved in a trademark dispute, we can help. A Davis Business Law Tulsa trademark attorney can guide you through registering your trademark, defending a lawsuit, or protecting your mark. We stand ready. Call us today at (918) 900-0192 or contact us online for a free consultation.