​​Wichita Trademarks Lawyer

What is a Trademark?

A trademark is intellectual property which protects distinctive marks or symbols associated with goods and services. In the United States, federal law protects trademarks, specifically the Lanham Act of 1946, which provides for the registration and enforcement of trademarks.

A trademark can be any word, phrase, symbol, design, or combination used to identify and distinguish the goods or services of one party from those of another. It is how the customer recognizes your business, products, or services in the marketplace. 

The purpose of a trademark is to provide consumers with a means of identifying the source of a particular good or service and to prevent confusion and deception in the marketplace. 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. Instead, the legal protection extends only to using 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 combination. 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 owns a common law trademark when it develops creative and unique words, logos, taglines, and phrases to name or describe its products. A company does not have to register a trademark to own it. 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 must register your trademark with the U.S. Trademark and Patent Office (“USPTO”).

To obtain a registered USPTO trademark, you must file an application containing a description of the mark, the goods or services with which it is used, and the basis for the registration (either current use or intent to use). The USPTO will examine the application to ensure the mark is not confusingly similar to any other marks already registered or used. If the USPTO approves the application, the mark will be registered and the owner will have the exclusive right to use the mark in connection with the specified goods or services.

Once your trademark is registered, you can enforce it by filing a lawsuit against anyone who uses a confusingly similar mark in connection with the same or similar goods or services. You can also use the trademark to prevent others from using the mark in a way that is likely to dilute its distinctive value or tarnish its reputation.

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 when intellectual property is at issue. 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. The written agreement between you and the contractor should reflect 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, where cases often move faster and under stricter rules than 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 Wichita 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; and
• 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 Wichita trademark attorney can guide you through registering your trademark, defending a lawsuit, or protecting your mark. We stand ready. Call us today at (316) 252-2291 or contact us online for a free consultation.