A trademark or service mark can be a word, phrase, logo, design or combination of these that identifies the source of origin of goods or services. A trademark exists in each state at common law, in most states through state registrations, and federally through USPTO registration. Registering your business as a corporation or other entity with a secretary of state confers NO federal or state rights to a trademark.

Anyone who claims rights in a mark should use the symbols TM (trademark for goods) or SM (service mark for services) to alert the public to their claim to an unregistered mark. You do not need to have a trademark application filed or a registered trademark to use these symbols. The registration symbol (R) may only be used when the mark is actually federally registered with the USPTO.

Selecting a registrable mark prior to introducing a new product or service will save time and money. You'll save when you attempt to register your rights, since it will be easier to do so successfully. You'll also save in printing and other cost since if you select a mark that is ultimately not available, you'll have to choose another name and start over with market identification. Trademarks are typically classified into four basic categories: generic, descriptive, suggestive, and arbitrary. Generic trademarks are not registrable since they are so common and used in the class under which the TM is seeking registration. Descriptive marks are generally not registerable since they describe the whole class of goods such as the word "spoon," or describe the good or service itself. Suggestive marks suggest the product/service and may be registerable under some conditions. Arbitrary marks are the best choice when selecting a trademark since they have absolutely no meaning associated with the owner's product or service, such as the word "Exxon (R)."

A trademark search should ALWAYS be completed to determine if your proposed mark is eligible for use and federal registration, and to predict the scope of your rights (existing common law rights will survive even a federal registration by another). For words or logos, a search should be conducted of federal records maintained by the USPTO. A State trademark and Common Law search should also be completed since the rights in trademarks vest initially with the first to use the trademark in commerce. Thompson and Thompson is a trademark searching company, and we recommend you contact them to perform a trademark search (we can do this for you).

Federal Registration of a trademark provides constructive notice that the mark is in use and that the owner is entitled to use the mark throughout the United States for the goods and/or services described in the registration. Federal Registration of a trademark can last indefinitely if properly renewed. There are two types of applications: "use?based" or "intent?to?use." A use?based application is utilized when the applicant is using the mark in interstate commerce. An intent?to-use application is used when the applicant has not used the mark in interstate commerce but intends to use the mark and wants to reserve it for future use (this right is limited, however).