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How does the trademark process work?
The first step before filing your application is to
conduct a thorough national trademark search on whether the mark in
question is currently in use in the U.S. Someone else may have federal
protection on the mark or is using the mark without registration, thus
potentially giving them legal rights. Upon verifying that no registered
mark exists that would likely prohibit your trademark from being
accepted, a determination is made as to which type of mark you have and
which class of goods or services is covered by the mark.
The class of goods and/or service that your mark
would fall under may fit singularly or multiply in one or more of
forty-five classes used by the trademark office to categorize marks.
With this information, the application is prepared and a drawing of the
mark, along with a specimen, is included. The drawing is a page, which
depicts the mark you seek to register. The specimen must be an actual
sample of how the mark is being used in commerce.
If the mark is used on goods, examples of acceptable
specimens are tags or labels attached to the goods, containers or
displays for the goods, or photographs of the goods, showing the mark on
the goods. Invoices, announcements, order forms, bills of lading,
leaflets, brochures, catalogs, letterhead, and business cards are
generally not acceptable. If the mark is used for services, examples
could include signs, brochures about the service, advertisements for the
service, or business cards or stationary showing the mark in connection
with the service. Photographs which show the mark as it is used or
advertising of the service may be submitted as well.
When this information is complete, the application
is filed and an examining attorney for the United States Patent &
Trademark Office (USPTO) will review the application and respond in
approximately six months. The USPTO decides your right to register a
mark but not the right to use it. If the mark is approved, it will be
officially published by the USPTO for public notification. Anyone
opposed to your mark must state their grounds within thirty days from
the notification to the USPTO. An opposition proceeding may proceed
before the Trademark Appeal Board to determine the outcome. If there is
no opposition to your mark, the USPTO will issue a registration
certificate if you have an actual “use” mark and a notice of allowance
of an “intent to use” mark.
If the examining attorney rejects the application, a
letter will be issued listing the reasons for the refusal and any
corrections required. You may reply to or amend the rejection until
accepted, or a final rejection is given. A final rejection may be
appealed to the Trademark Appeal Board and then to the U.S. Court of
Appeals. A common ground for refusal is likelihood of confusion between
your mark and a registered mark. This conflict entails the similarity of
the marks and the commercial relationship between the goods and/or
services listed in the application. The marks do not have to be
identical and the goods/services do not have to be the same. Other
common refusals include marks which are merely descriptive,
nonfunctional, or consist of geographic terms or surnames.
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