WHAT IS A TRADEMARK OR SERVICE MARK
A trademark relates to identification of a product by means of a name or
symbol that is not descriptive of the product, and which is used in the
streams of commerce to identify the source or manufacturer of the product.
Trademark rights are based on first use in commerce and will prevent
others from selling similar products using the same name or symbol, or
any confusingly similar name or symbol. A trademark will not prevent
others from making the same goods or products. Trademarks may
be registered with the Secretary of State when used in intrastate commerce
and with the United States Patent and Trademark Office when used in
interstate commerce. A service mark is similar to a trademark except that
it relates to the identification of a service rather than a product.
HOW IS A TRADEMARK OR SERVICE MARK OBTAINED
When one opens a business to sell products or services it is ordinary and
customary for the owner to select a name for the business, or it product(s). If the name selected is not descriptive of the business or the product, the name may
function as a service mark or trademark. The mere use of such a name, does not by itself guarantee that the owner will be able to continue to use the name. In this regard, another business may have begun using the same or similar name earlier and thus, would have priority to the use of the mark on its products or services. As large sums of money may be expended in advertising to cause the public to identify the products and services of a given business, it becomes important for the business to verify that a selected name is available prior to the actual use of the name. A trademark or service mark search should be undertaken to verify that the mark is not already in use. Once a favorable trademark availability report is obtained, the owner should seek to register the mark with the appropriate state agency if the mark is used with a single state only or alternatively, with the United States Patent and Trademark Office if the mark is used in interstate commerce.
Registration of a mark is achieved by filing a trademark or service mark application
with the appropriate state government agency.
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