General Trademark FAQs

• What is a Trademark?
• What is a service mark?
• Can the same name be registered more than once?
• What are common law rights?
• What constitutes interstate commerce?
• Is it necessary to register in all 50 states?
• Does the government perform a search on the name when you apply for federal registration?
• What is the difference between a state trademark and a federal trademark?

What is a Trademark?
A TRADEMARK is either a word, phrase, symbol or design, or combination of words, phrases, symbols or designs, which identifies and distinguishes the source of the goods or services of one party from those of others. A service mark is the same as a trademark except that it identifies and distinguishes the source of a service rather than a product. Throughout this booklet the terms "trademark" and "mark" are used to refer to both trademarks and service marks whether they are word marks or other types of marks. Normally, a mark for goods appears on the product or on its packaging, while a service mark appears in advertising for the services. A trademark is different from a copyright or a patent. A copyright protects an original artistic or literary work; a patent protects an invention. For copyright information call the Library of Congress at (202) 707-3000.

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What is a service mark?
A service mark is a word, phrase, symbol or design, or combination of words, phrases, symbols or designs which identifies and distinguishes the source of a service rather than a product.

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Can the same name be registered more than once?
The same name may be registered more than once, depending on potential conflict between those marks. To determine whether there is a conflict between the two marks, the PTO determines whether there would be likelihood of confusion, that is, whether relevant consumers would be likely to associate the goods or services of one party with those of the other party as a result of the use of the marks at issue by both parties. The principal factors considered are the similarity of the marks and the commercial relationship between the goods and services identified by the marks. The marks need not be identical and the goods and services do not have to be the same.

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What are common law rights?
Once you conduct business in interstate commerce, that is over state lines, you have established common law rights to that name. This gives you limited rights to the name, even though you may not have a registered state or federal trademark.

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What constitutes interstate commerce?
For goods, "Interstate commerce" involves sending and/or advertising the goods across state lines with the mark displayed on the goods or the packaging of the goods. For services, "interstate commerce" involves offering, advertising and/or rendering a service to those in another state.

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Is it necessary to register in all 50 states?
If you want the rights to your chosen name throughout the Unites States, you can register for a Federal trademark with the US Patent and Trademark Office. You do not have to register with each state individually. A federal trademark will give you the exclusive rights to the name throughout the US. You would then only have one application process and fee, as opposed to 50.

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Does the government perform a search on the name when you apply for federal registration?
Yes, the government does perform a preliminary search, however, it is very limited. Not only will you have to wait up to a year to find out the results of their search, but the government only researches their own federal records. If they do not find any conflicting federal trademarks or service marks, they will grant you your registration. However, they do not check for conflicting state trademarks or for companies with common law rights to the name. Unfortunately, if someone already has a state trademark or has common law rights to this name, and has established the name longer than you have, they have the right to oppose your registration of the trademark and ultimately have your name taken from you. Creative Trademark Services will conduct a comprehensive search on your proposed trademark, letting you know not only if the government should grant your registration, but you will be informed of any companies that may be able to take your name from you in the future. Furthermore, you will receive your results within 2-4 business days, with 4 hour and 24 hour rush services available.

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What is the difference between a state trademark and a federal trademark?
There are two different levels of name registrations you may apply for:

1. A state level for each individual state, covering you for business conducted within your state.

2. A federal level, covering you for business conducted in all of the United States.

These are two separate registrations platforms that never cross paths. And because these are completely separate from each other, many circumstances may occur.

With state registrations, several people may legally own the same name each within their own state, as each separate state’s records do not cross paths either. This may restrict your use of your name in those other states who already have existing registrations for that same name.

In addition, someone may already have, or be granted a registration for the same name on a federal level, now restricting your use of that name to only within your state.

The best and safest way to fully protect your business or product name is to receive a Federal Trademark Registration on that name.

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Any additional questions?
Email us at info@creativetrademark.com
Call us at 201-825-1313

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