3 Common Questions About Trademark Law


Trademarks are something we all see but few of us fully understand.  There are the little TM symbols by company names and maybe even off-brand merchandise for our favorite sports team in a store, but most of us don’t put much thought into trademark law unless we actually apply for a patent.  Once you have skin in the game, the idea of it becomes much more important.

The United States Patent and Trademark Office (USPTO) defines a trademark as “any word, name, symbol, or device, or any combination used, or intended to be used, in commerce to identify and distinguish the goods of one manufacturer or seller from goods manufactured or sold by others, and to indicate the source of the goods.”  If you have a brand name, you can file for a trademark. Then other people won’t be able to use your brand without your permission.

You can file for a trademark with the USPTO.  Applications are available online on their website using the Trademark Electronic Application System.  Read on for answers to three common questions about trademark law.

1. Do I need an attorney to apply for a trademark?

Whether or not you need an attorney depends on where you are running your company.  If you live in the United States and plan on running your business from within the country, you can file on your own.  This does not mean you cannot get a trademark attorney. It would be beneficial to have an expert explain all the fine print to you when you apply.  An attorney can also help you figure out the chances of success in obtaining the trademark.

If you live and work outside the United States and are applying for a U.S. trademark, you must have a trademark attorney.  This is a requirement, not a recommendation. This person must practice law within the country in order to represent you to the USPTO.

2. What are common law rights?

Common law rights say that not every trademarked brand or product has to be registered with the USPTO.  If someone is using a brand name, this law says the rights may legally belong to them even if they never applied for a trademark.  Furthermore, the business owner can challenge an opposing application for their brand if someone else tries to register with the USPTO under the same name.

This is similar to what would happen if someone tried to use a trademarked good or service that was registered with the USPTO.  Either way, getting an attorney will be helpful in successfully keeping your brand name for yourself.

3. Can I get a trademark on a regulated good or service (tobacco, gambling, etc.)?

Any applications for substances that are restricted by law automatically must undergo further review.  The USPTO will confirm that your brand is following the law that is associated with your goods or services.  If the federal law is not being obeyed, your application will be denied. Any company that involves compliance with other laws will go through this review process.  An attorney can clarify all the intricacies in this type of trademark law.

Looking for a trademark attorney?

Whether you are filing for a trademark or trying to keep one associated with only your brand, attorneys can be a great resource.  How do you go about finding them, though?  Locate Legal Help makes it easy.  Simply go to their website and enter the type of legal issue you are facing and your zip code to find exactly the help you are looking for.