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A trademark is a word, name, phrase, or symbol which identifies and distinguishes the business or provider of goods or services. Trademark applications may be more complex than copyright submissions and are granted by the U.S. Patent & Trademark Office (USPTO). Trademarks registered with the USPTO are marked with an encircled letter “Ⓡ” while those registered by a state government or common law are marked with a “TM” after the trademarked name or symbol. Nolo notes that owners of unregistered common law marks may have legal rights within their geographic areas. The USPTO describes common law rights existing from actual use of a mark. For more about common law use with a "TM" on your mark, see How to Establish a Common Law Trademark by Michelle Kaminsky, Esq.
Registering your trademark with a government agency while monitoring and enforcing its unauthorized use is critical to protecting it. Otherwise, you could risk losing it through a form of abandonment known as trademark genericide. There are many trademarked brand names we use as general words without realizing it. Such trademarks are highly guarded by their owners.
From an economic standpoint according to ipwatchdog.com, “…a trademark is just a symbol that allows a purchaser to identify goods or services that have been acceptable in the past and reject goods or services that have failed to live up to the desired standards, which will vary from consumer to consumer.”
You may also hear the expression “service mark,” or see the tag “SM,” which is basically the same. Where trademarks apply to products or brands, service marks apply to services by indicating the source. Common law allows posting a TM symbol without registration, but it is not as secure as registration with a government agency, e.g. federal or state government. The USPTO offers a Trademark Basics guide with additional details.
Trademarks are also utilized by farms, agri-businesses and food entrepreneurs. See Farm & Dairy article "How to Trademark Your Farm Business," by Sara Welch for details.
SEARCHING FEDERAL TRADEMARK DATABASE
TESS (Trademark Electronic Search System) is the free online trademark database to search to verify if your new mark is available. TESS helps you to determine that your mark has not been registered by another party with the same classification of goods or services. Examples of goods or services by class are illustrated in the chart on this page. For more details on searching the TESS database see https://www.uspto.gov/trademarks-application-process/searching-trademarks/using-trademark-electronic-search-system.
SEARCHING STATE TRADEMARK DATABASES
Each state has its own state trademark registration process and searchable database. Usually the Secretary of State site provides details. In the Ohio Valley Tri-State region the following sites offer searchable databases:
Ohio Secretary of State https://businesssearch.ohiosos.gov/
Kentucky Secretary of State https://web.sos.ky.gov/ofx/tmsearch
Indiana Secretary of State https://bsd.sos.in.gov/PublicTrademarkSearch
INTERNATIONAL TRADEMARK CLASSES
One must determine their associated goods and services classification first for their mark before searching. There are only 45 goods and services classes. These are officially known as International Trademark Classes (illustrated in chart). An International Class represents the type of good or service classification that the mark identifies. Two different trademark holders could use the same name if they are used for different goods or services. For example, the federal trademark for the Delta® airline service with International Classification 039 for Transporting and Travel Services may be subsequently used in commerce by the noncompeting Delta® faucet manufacturer with International Classification 011 Appliances. Another non-competing example would include Dove® chocolates and Dove® soap. To locate any goods or services classes in which your trademark falls, see the Trademark ID Manual. Nolo also offers a guide entitled Trademark Classes: Which One Fits the Mark You Are Registering For?
Once you feel confident that your prospective trademark is not found within the goods and services class of your mark in the TESS database, then you could consider a trademark application.
In the event that you must search trademarks at the international level, WIPO offers a Global Brand Database. Otherwise one could search for trademarks separately at the appropriate agency for each country, e.g. Trademarks at the UK Intellectual Property Office.
IMPORTANT NOTICE: Information on this page and other content from the YIP website, programs, or services are provided for informational purposes only. Any information provided should not be considered legal advice. YIP seeks only to facilitate related information and community connections to further IP awarene. Such trademarks are highly guarded by their owners.stitute for securing legal advice from a licensed attorney.