Is a trademark the same thing as a copyright or patent?
Absolutely not. A copyright protects an original artistic or literary work. A patent protects an invention or discovery. If you need assistance with either of these, please call us — we can still help!
You can find more information about patents at www.uspto.gov/main/patents.htm You can find more information about copyrights at www.copyright.gov. You can find some very valuable information about trademarks on the website for the
United States Patent and Trademark Office.
WHAT IS A TRADEMARK?
A trademark is a word, phrase, symbol, design, sound, or color, or some combination of them, that is used to identify your products (i.e. tangible items for purchase) from the products of someone else.
A service mark is the same, except that it is used to distinguish your services (i.e. banking services, legal services, marketing services that you are going to perform for your customers) from those of someone else.
On our website, we use the term “trademark” or “mark” to refer to trademarks and service marks.
WHAT IS A PATENT?
A patent is a property right granted by the Government of the United States of America to an inventor “to exclude others from making, using, offering for sale, or selling the invention throughout the United States or importing the invention into the United States” for a limited time in exchange for public disclosure of the invention when the patent is granted. While we do not handle patent prosecution at MAVEN, we have a network of attorneys that we can refer this work to.
WHAT IS A COPYRIGHT?
Copyright is a form of protection grounded in the U.S. Constitution and granted by law for original works of authorship fixed in a tangible medium of expression. Copyright covers both published and unpublished works. Copyright protects original works of authorship including literary, dramatic, musical, and artistic works, such as poetry, novels, movies, songs, computer software, and architecture. It does not protect facts, ideas, systems, or methods of operation, but may protect the expression of these items.
IF I INCORPORATED A COMPANY OR REGISTERED A COMPANY NAME, DO I HAVE TRADEMARK PROTECTION?
No, a common misconception is that one you incorporate a corporate entity under a particular name or register a fictitious name, you own trademark rights. This is not true. The regulations and processes that apply to corporate name and fictitious names are different from trademark law.
WHAT IS THE SPECTRUM OF DISTINCTIVENESS?
It is a concept in trademark law that refers to the strength of a trademark in relation to the specific goods/services on which the mark is used. Every trademark may be categorized along a continuum, ranging from marks that are highly distinctive to matter that is a generic.
At one extreme are marks that are completely arbitrary or fanciful when used on goods/services (i.e. APPLE for computers, or BLACKBERRY for personal computing devices, EXXON for gas). Next on the continuum are suggestive marks, followed by merely descriptive matter. Finally, generic terms for the goods or services are at the opposite end of the continuum from arbitrary or fanciful marks.
The more distinctive a mark, the more likely you are to be able to protect and enforce it.
DOES MY FEDERAL TRADEMARK REGISTRATION PROTECT MY MARK IN OTHER COUNTRIES?
No. Trademark rights are territorial. Your federal registration only grants rights to you in the United States.
If you need assistance with international applications, please contact us.
WHAT ARE TRADEMARK INTERNATIONAL CLASSES?
Each application must include a list of the products or services that you are offering or plan to offer in connection with your trademark. The USPTO categorizes all products / services into 45 different classes. By providing us with this information, we can assist you with crafting the right language for purposes of your application.
Additional information regarding international classes is found here:
You can also use this USPTO tool to help you with preparing your products/services list: http://tess2.uspto.gov/netahtml/tidm.html
WHAT HAPPENS DURING THE TRADEMARK APPLICATION PROCESS?
See our DOMESTIC AND INTERNATIONAL FILINGS section for additional information.
DO I HAVE TO USE THE MARK BEFORE I GET A REGISTRATION?
Yes, you do. We know — it seems counterintuitive. You want to have a registration before you start using the mark to identify your products/services. However, the USPTO requires that you demonstrate “use in commerce” before the USPTO will register your mark.
WHAT IS “USE IN COMMERCE”?
“Use” or “use in commerce” in the context of trademark applications means commerce that may be regulated by U.S. Commerce (interstate, territorial, and/or between United States and a foreign country.
- You have placed the mark on your products, product packaging, containers, or on tags or labels attached to your products; AND
- You have sold or transported the products across state lines or to a foreign country.
- You have displayed the mark in advertising your services; and
- Your services are available to be purchased by the public.
In order to constitute use, the mark in the application must be identical to the mark placed on or in connection with your products/services.
For services, offering services over the Internet is enough to have “use in commerce.”
You can find additional information about “use in commerce” here: http://tmep.uspto.gov/RDMS/detail/manual/TMEP/current/d1e2.xml#/manual/TMEP/current/TMEP-900d1e1.xml
WHAT ARE “DATES OF USE” OR “DATES OF FIRST USE”?
Prior to registration in the United Sates, we will need to provide the USPTO with the dates of first use of your mark. There are two (2) dates of first use that we will need.
The date of first use anywhere is the date when the goods were first sold or transported, or the services were first rendered, under the mark, regardless of whether the nature of the use was local or national, intrastate or interstate, or of another type.
The date of first use in commerce is the date when the goods were first sold or transported, or the services were first rendered, under the mark in a type of commerce that may be lawfully regulated by the U.S. Congress, i.e. across state lines or between the U.S. and a foreign country.
You can find additional information about “dates of use” here: http://tmep.uspto.gov/RDMS/detail/manual/TMEP/current/d1e2.xml#/manual/TMEP/current/TMEP-900d1e225.xml
HOW LONG DOES IT TAKE TO GET A TRADEMARK REGISTRATION?
From filing to registration, you should expect the process to take 12-18 months in the United States Patent and Trademark Office. Internationally, the time varies by jurisdiction. Generally, it could take anywhere from 18 months to several years.
WHAT ARE SPECIMENS?
The USPTO requires specimens because they want to see how the mark is viewed by the public. One specimen is required for each class of products/services.
You are required to submit one specimen per class.
Specimens must be post-production — you cannot submit renderings or drafts. Specimens must show the USPTO how the public views the mark. Therefore, photographs of labels or tags or product packaging are acceptable but renderings are not.
Specimens must be in JPEG or PDF format.
Specimens for trademarks used on products can be:
- tags/labels which appear on the products
- product packaging
- the mark as imprinted or stamped on the product itself
- for computer programs, a screenshot of the trademark
- catalogs or online displays
Additional information regarding specimens for marks for products is available: http://tmep.uspto.gov/RDMS/detail/manual/TMEP/current/d1e2.xml#/manual/TMEP/current/TMEP-900d1e489.xml
Specimens for marks used in connection with services can be:
- Internet web page advertising;
- newspaper/magazine/trade journal advertising;
- telephone directory advertising;
- promotional brochures on which the service mark is imprinted;
- direct mail advertising materials;
- handbills, posters, leaflets, circulars, fliers;
- business signage (on storefront, office door or company vehicle – provide photos);
- invoices may be acceptable service mark specimens provided they show the mark and refer to the relevant services;
- business letterhead stationery and business cards that show the mark and contain a clear identification of the services;
- a copy of an actual letter to a customer on business letterhead stationery bearing the service mark where the content of the letter indicates the field or service area;
- trade show demonstration materials (provide photos);
- static displays in customer showrooms (provide photos);
- billboard advertising (photographs); and
- radio/television advertising (provide script/photos).
Additional information regarding specimens for marks for services is available here: http://tmep.uspto.gov/RDMS/detail/manual/TMEP/current/d1e2.xml#/manual/TMEP/current/TMEP-1300d1e266.xml
WHEN CAN I USE THE ® SYMBOL?
You can only use the ® symbol in connection with federally registered marks. However, if you are using the mark to sell your products or advertise your services, and you do not have a federal registration yet, you can use the ™ symbol next to your mark.
WHAT ARE THE CATEGORIES OF WORKS THAT ARE PROTECTED BY COPYRIGHT?
Copyright protects original works of authorship. The Copyright Act specifies that works of authorship include:
- Literary works
- Musical works, including accompanying words
- Dramatic works, including accompanying music
- Pantomimes and choreographic works
- Pictorial, graphic, and sculptural works
- Motion pictures and other audiovisual works
- Sound recordings
- Architectural works
- Compilations, collective works and derivative works
ARE IDEAS OR FACTS PROTECTABLE BY COPYRIGHT?
No, the Copyright Act also expressly excludes from protection ideas, procedures, processes, systems, methods of operation, concepts, principles, and discoveries, even if they are described, explained, illustrated, or embodied in an otherwise protectable work
WHAT EXCLUSIVE RIGHTS ARE GRANTED BY COPYRIGHT?
A copyright provides its owner with a bundle of exclusive rights in a protected work for the copyright’s duration. The primary exclusive rights granted by copyright are as follows, though some do not apply to all types of works:
- The right to create derivative works
- Public performance
- Public display
WHAT IS THE DIFFERENCE BETWEEN SUPPLEMENTAL AND PRINCIPAL REGISTERS?At the federal level, trademarks are registered under the Lanham Act in the USPTO. The USPTO administers two trademark registers:
Principal Register. The Principal Register is the primary register of trademarks the USPTO maintains, subject to additional registrability requirements, and is reserved for marks that are inherently distinctive or that have acquired distinctiveness.
Supplemental Register. The Supplemental Register is the secondary register and is reserved for certain nondistinctive marks that do not inherently qualify for registration on the Principal Register but that are capable of distinguishing goods or services. If a mark on the Supplemental Register acquires distinctiveness through use and promotion over time the owner may file a new application to registerthe mark on the Principal Register.
PROTECTING YOUR CREATIVE CAPITAL®
At MAVEN, we want to be considered your essential partner in creating and implementing an intellectual property strategy that optimizes your intellectual property’s value, efficiency, and protection.