Trademark ownership is determined by who uses the mark first in a commercial setting. By simply using a name, logo, or other symbol to identify goods or services in the marketplace, a trademark has been created and trademark ownership has been established.

There is no real difference between a trademark and a service mark. A trademark refers to any name, logo, symbol or other device used to distinguish a product from competing products in the marketplace and to identify the product’s source. However, a service mark is any name, logo, symbol or other device used to distinguish a service from others in the marketplace and to identify the source of the service.

The typical timeframe for obtaining a trademark or service mark is 12-18 months. It is always best to get the process started as soon as possible. If another party does a trademark search, the search will disclose to them that an application for registration is already pending. Thus, potential infringers are put on notice that you claim an ownership in that mark or have superior rights to that mark, which is a major deterrent to them. When filing an application for trademark or service mark it is important to remember that one trademark per application, i.e. A logo, name and slogan are three separate trademarks.

It is possible to cancel a registration if someone else is already using your trademark before you but never registered their use. Usually cancellation is where the trademark is being used by a third party in a nationwide capacity. (i.e. Infringer). Your trademark registration will not protect you from an infringement lawsuit if the first (other) user can establish that your use of the mark is creating a likelihood of customer confusion. If the other person’s use is not nationwide, there is the possibility that you and the other user can share dual ownership of the mark within your respective regions.

Prior to applying for trademark registration, it is important that you conduct a thorough trademark search first for several reasons:

• application for trademark registration is $335. There is no sense in wasting money on a trademark registration application that will be rejected by the Patent and Trademark Office anyway;

• you don’t want to infringe on someone else’s mark. The Patent and Trademark Office may find “potentially confusing” mark during its search but still register your mark based on its internal guidelines. However, keep in mind that you may still be subject to an infringement lawsuit if the owner of the previous mark decides to sue you;

• A Patent and Trademark Office search only covers registered trademarks. It does not include trademarks being used but not registered. Search both registered and unregistered marks to ensure that you are not infringing on anyone’s rights.

Under common law, a trademark is defined as being used to identify a business’ goods or services in the marketplace and has not been federally registered. An individual with common law trademark rights only has the right to exclusive use of the mark in parts of the country where the mark’s being used, the right to recover for harm caused by the infringing use, and the right to recover punitive damages and attorney’s fees if it can be shown that the act of copying was deliberate.