Trademark and Servicemark Properties

What can be Protected The source identifier of goods or services (the brand or specified characteristics of a product or service).
Trademarks, Servicemarks, Collective Marks, and Certification Marks.
Includes devices, words, logos, colors, sound, scents, look (trade dress), shapes.
Who can Obtain Protection First User (or possible later users in different fields or regions).
Requirements for Protection Actual use of the Mark in interstate commerce.
Bars to Obtaining Rights If it is similar enough to an existing registered or unregistered mark. If the mark is immoral, scandalous, deceptive, misdescriptive, generic, or an entire flag.
Scope of Protection Prevent others from using your Mark. Prevent others from using any Mark that is similar enough to cause consumer confusion between the two Marks.
Area of Protection USA - but may only protect use within a specific class of goods or services or may be granted only for a specific geographic region.
How are Rights Obtained National - after Registration by the US Patent and Trademark Office.
Common Law - by local or industry reputation and knowledge.
Duration of Protection National - 10 years from date of registration - Renewal terms available.
Common Law - indefinitely
How Long to Obtain 1 year average.
Registration Required Yes - but common law rights are available.
State Protection Available Yes
Basic Theory Can’t protect the good or services just the source identifier of them.
Is Use Required No - but must have an intent to use if not currently using.
Is Notification Required No but if ® is not displayed the right to get infringement damages is lost.
Should display ™ or SM as soon as you claim your rights in the mark.
Are Rights Assignable Yes, both assignable and licensable.
Test for Infringement Marks look alike enough to the consumer so as to cause confusion, mistake or deception.
Miscellaneous Notes There is a hierarchy among the types of Marks. Certain types can't be registered unless they acquire distinctiveness. Merely Descriptive Marks require secondary meaning to be established.