Hudson Valley Trademarks Attorney

A trademark is a word, symbol or phrase that is used to identify a particular manufacturer or seller of products. Under trademark law, a service mark identifies the source of particular services. Trademarks and service marks are a way for consumers of goods and services to easily identify their source. This impacts consumers’ expectations of the quality, originality and value of the product or service.

In order to be eligible for trademark protection, a mark must be distinctive based on the relationship between the mark and the product or service. A trademark is not available for the use of a generic or descriptive word. For example, Apple was able to obtain a trademark for its computer products even though “apple” is a generic word identifying a type of fruit. This is because the use of the word “apple” is distinctive in identifying computer products. Hence it works as a trademark.   

Rights to the mark are acquired when it is first used in commerce for the sale of goods or services. Unlike a copyright, which arises upon creation, a trade name and/or logo only becomes a trademark when it is used in connection with the actual sale of goods or services. However, a trademark application can be filed on the basis of “intent to use”, with proof of use of the mark to be filed within 6 months (or an extension obtained to obtain additional time to file proof of use). The trademark application requires identification of the date of first use, and a specimen of the mark as it is used in commerce.

Although registration with the US Patent and Trademark Office (USPTO) is not required to obtain trademark protection, there are considerable benefits from registration. Registration provides nationwide constructive notice to the public regarding the owner of the mark. Once registered, the owner of the mark can sue infringing parties in federal court, and obtain damages, attorneys’ fees and an injunction to cease further use of the mark.

The owner of a trademark that is being infringed would typically sue for infringement based on the “likelihood of confusion.” This occurs if there is a likelihood that a mark will cause consumers to be confused as to the source of the goods. It is therefore important to conduct an exhaustive search regarding the availability of a mark before using it in commerce. A preliminary search can be done on the USPTO website. However, prior to filing a trademark application, it is prudent to conduct a comprehensive search and obtain an attorney’s opinion about the availability of the mark. This can save time and money if infringement is alleged after a large investment in the mark has been made, or after wasting money and several months on a trademark application that is ultimately denied.  

Call attorney Claudia Pollak today for a free telephone consultation and free preliminary search of your mark. The practice offers flat fee services to conduct a comprehensive trademark search, to advise on the availability of the desired trademark, and to file the trademark application with the USPTO. In addition, the practice sends Cease and Desist Letters to infringing parties and assists with other enforcement actions to prevent the unauthorized use of your trademark. Call today for your free consultation.

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75 South Broadway, 4th Floor, White Plains, NY 10601
| Phone: 914-908-6220

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