Is it necessary to sell products/services in order to get a trademark registered?

The short answer is yes. Suppose you are aspiring to get your trademark registered and are not actually selling any products or services under a clever brand name or slogan. In that case, you can’t actually have a trademark yet. To apply for trademark registration, you should first reach a tangible number of sales under the banner or slogan that you need registered.

I am confused as to what is the difference between trademarks, patents and, copyrights?

Trademarks generally protect words, symbols, phrases, or designs that distinguish brands so consumers can easily understand the source of their potential purchases. Some of us call it the brand name, but when it comes to trademarks, we’re more focused on brand recognition.

Trademarks generally protect words, symbols, phrases, or designs that distinguish brands so consumers can easily understand the source of their potential purchases. Some of us call it the brand name, but when it comes to trademarks, we’re more focused on brand recognition. On the other hand, patents are used to protect inventions and their designs and functionalities. In other words. Every new and useful machine, process, improvement, or composition of matter should be patented. In doing so, 35 U.S.C. § 101 gives owners exclusive rights to employ processes or manufacture products.

Lastly, copyrights are registered to protect original and artistic works which include art, photographs, books, music, and movies.

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Is it necessary that I sell products and services throughout a country?

To register a Federal Trademark from the US Patent and Trademark Office (USPTO), you should have genuine sales (the guidelines use the word ‘Bona-Fide Sales’, and are unfortunately modest on demonstrating what it means). This means that selling your products in your home state isn’t good enough. Your sales should be across state lines or beyond.

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Is there a floor, or ceiling figure to qualify for the “In Commerce” prerequisite?

Sadly, the USPTO hasn’t provided a specific number of sales or sales revenue to date to make aspiring entrepreneurs and businesses understand what the “In Commerce” requirement entails. Instead, trademark law states that a potential trademark owner needs a ‘Bona-Fide’ number of sales to begin their registration. To make sure that your brand qualifies, you need to set a target based on your industry. For instance, selling a t-shirt to a close friend will not qualify as ‘Bona-Fide’ sales but at least a hundred t-shirts are universally applicable.

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My online selling business is already in place, should I wait for the trademark registration before I start my sales?

Not necessarily. However, the most prudent thing to do in this situation is to register your trademark. Conducting business without one may make your brand name (or other intellectual properties) vulnerable to third party infringement. This is why you should preemptively register your trademark with the USPTO before you finally get a chance to apply. If you are serious about growing your business, it is worth your while to register trademarks to protect your brand against infringement.

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What is exactly meant by the term “specimen” and when will I be required to provide it?

A specimen illustrates how trademark applicants intend to use their trademark in commerce. A specimen could consist of a picture of a tag, label, or the packaging material among other things. In other words, a specimen works as proof of your brand actualizing the ‘Use-in-Commerce’ requirement for applicants. For instance, a trademark for a product is used in conjunction with a service, some permissible materials include advertisements, flyers, brochures, etc.

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I am currently not selling the items of my business, do I still have to file a trademark?

Yes, you may register an ‘Intent-to-Use’ trademark application. According to Section 1(b) of the Lanham Act, 15.U.S.C. § 1051(b), a person who has an intent to make bona-fide sales, may request the registration of their trademark. Once their Intent-to-Use Trademark Application is accepted, they will be issued a Notice of Allowance. From here, this brand will have 6-months to either submit their Statement of Use of to file a petition of extension on the Statement of Use. Each request will grant the applicant additional 6 months to do the same. Also, the applicant is allowed to make a total of 5 extension requests.

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Is there a clause, or requirement for my products to be sold in more than one states?

To register your trademark, the mark should come with a product or service that is being sold throughout the state. In other words, when it comes to products specifically, your products should be sold beyond state lines. With regards to services, your brand should have sales in multiple states.

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While reading came across service mark and trademark, now I am confused which one to register?

There isn’t much of a difference, really. You can trademark words, slogans, logos, sounds and designs when they are attached to a good and enable potential consumers to identify a brand that produces it. A service mark is an interchangeable word for the same, however, it is specifically reserved for brands that are selling a service.

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Is there a way to shorten the application process, and how long does it usually take to get approved?

After submitting your trademark application, applicants should expect to hear from the USPTO within a period of 3-to-6 months. Depending on whether this trademark was found to be eligible or ineligible for registration, this process could also take up some additional months. Based on this information, the total time required for an application to be processed, from start to end, can be anywhere between 8-months or a year. However, it is crucial that file your trademark application as soon as possible to kickstart the entire process.

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What do I need to do in order to expedite the trademark process?

This is usually not the case. However, there are a few circumstances where the trademark application process may be expedited. For instance, when it comes to litigation, if there is a possibility of trademark infringement or if there is a unique need to obtain a US trademark for foreign registration, then your registration process can be expedited. Still, even if you manage to get an expedited review from the USPTO, your registration process could take up to 4-to-6 months.

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Is there, if any, significance of using a “common law” trademark?

Federal registration isn’t necessary to gain trademark rights. If you are actually using a trademark, you will already have ‘common law’ rights. Commonly, the first person to either use a trademark in commerce or file their intent-to-use application with the USPTO, will have the ultimate right to use or register the mark.

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I have applied for a trademark registration, can I start using the trademark sign (®)?

You may use your federal registration symbol once your mark has been registered with the USPTO. Even if your application is pending, you cannot represent your brand with the registered mark symbol once your mark has actually been registered. Additionally, federal registration symbols ought to only be used for goods or services that are being registered federally.

Note: Many foreign countries use this symbol to indicate that their trademark is registered in this country. Using this symbol by a foreign registration holder may be legit.

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I have no background in law, do I hire an attorney to file my trademark application?

No, even though it may seem desirable at first to hire an attorney that is familiar with trademarks. Applicants must comply with all the procedural and substantive requirements for the Trademark Rules of Practice and the Trademark Act even if they are not being represented by an attorney.

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Is there a list stating easier (or difficult) trademarks that can be applied for?

Let’s put aside the problem of other people using similar marks, you should note that some trademark tends to be a lot easier to protect as opposed to others. Firstly, the most protectable kinds of trademarks are known as ‘fanciful’ trademarks. These are followed by ‘arbitrary’ marks, and ‘suggestive’ marks. Probably, the least protectable kinds of trademarks are called ‘descriptive’ marks.

Essentially, fanciful marks are just made-up words, or words that were coined for the specific purpose of being a trademark. Some famous examples of such trademarks are Pentium (manufacturer of computer chips), and Exxon (the international oil and gas company).

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I already have a trademark in USA, will it also apply internationally?

This is an important consideration if you plan on being involved in international trade. Commonly, international trademark protection is granted on a country-to-country basis even though some ‘group filings’ are provided as a result of some treaties that the US had joined earlier; resulting in significant savings. In most countries, trademark ownership is based on your registration and not as is commonly used in the US.

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Is a trademark the same as my domain name?

Registering domain names will not automatically grant you trademark rights. These rights will only arise from registering and using a mark. Based on this information, it is easy to conclude that registering a well-known mark as a domain name will not qualify as an infringement since it is a predetermined fact that your mark should have some kind of commercial use.

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I intend to sell my business, will the trademark be transferred?

Yes, they can. Trademarks or service marks can easily be licensed to be used by others, so long as the owner of the mark has the right to control how the mark will be used or how the goods and services will be sold under the same mark. For instance, the owner of a trademark could allow another manufacturer to use the mark on their products or services. The trademark owner will have control and will be able to direct the quality of the products being sold under the trademark.

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What is meant when the phrase ‘Using a trademark in commerce’ is used?

The short answer to this question is that use in commerce implies that your mark is being used in the trademark sense. This means that the mark is being placed on a product, label, tag, or literature being used on a product and they are being shipped to bona fide customers. In the context of federal registration purposes, ‘use in commerce’ implies commerce between states or interstate commerce.

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I see two options on your site, a) comprehensive trademark search and b) preliminary screening search, what is the difference?

Preliminary screening searches are conducted on the USPTO website and it is done to determine whether identical trademarks exist or are already registered for very similar goods. This type of search is relatively inexpensive and its point is to avoid the expense of comprehensive searches. Comprehensive or full trademark searches are conducted by independent search companies and they include identical trademarks as well as similar marks.

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