Do It Yourself Trademark and Servicemark Application - Check This Out - All You Need To Know!

Video contains subtitles!

WARNING: This is NOT legal advice. This video is to help small business and individuals who don't have the money to retain a lawyer to file a trademark, or you have an aversion to lawyers and will likely wing it on filing a TM application.

This video is an outstanding presentation by the the USPTO on the basics of what you need to know about filing for a trademark or service mark.

(The presenter is great, he uses everyday language to explain difficult, complex subjects, and he provides mountains of information, resources, and money-saving tips for those unable to pay thousands of dollars to a lawyer.)

Why provide this video? Well, let's admit it, the reason you are on YouTube is because 99.9% of you are NOT going to pay a lawyer to deal with the USPTO (United State Patent and Trademark Office). Yuck, even the name evokes EXPENSIVE to deal with!

Assuming you are going to wing it (like most small businesses do) you need to educate yourself on the issues so you don't make mistakes or waste time and money.

Again, this is NOT legal advice, but here's a quick summary of information I have found out over time (some of what I post here is mentioned in the video):

- A trademark identifies a product or company, and servicemark identifies a service.

- Trademarks and servicemarks are one in same in regards to the benefits of registering a mark, the law, and protections received. So I will refer to them as trademarks or simply "TM." (Although some people write "trade" and "mark," it is one word, not two.)

- Generally there's three sources for trademark protection: Federal registration, registration in your state, and common law protection (for those of you who did not register the TM.)

- Fed reg. gives national protection of your mark; state registration provides protection within your state; and common law protection extends within the region or locale that you do business.

- Generally, when there's a dispute between individuals or parties over a TM, the party who can prove FIRST USE IN COMMERCE will win. For example, you have solid evidence that you started performing iPhone display repair services under the name "All-iPhone Display Repair" in 2004. The TM thief says "I win because I registered 'All iPhone Display Repair' with the USPTO in 2005."

No, the infringing party in this example does NOT win. Not only did you prove first use, but under the law a later-filed federal or state registration does NOT trump a showing of earlier first use in commerce.

Scope: Keep in mind that a TM owner who does NOT register with his state or the fed govt. generally would NOT have protection against someone outside of your locale doing business with the same TM.

- A business incorporating, filing a DBA (doing business as, or filing a fictitious name statement), obtaining a local business permit or license, having a business license, or being a licensed professional (engineer, doctor, lawyer) has zero affect on being a TM owner.

In other words, you cannot defend against an infringement claim (aka you stole someone's TM) by arguing you obtained a business license or incorporated. Incorporating a business does NOT include your filing a trademark application.

- You do NOT need to register a trademark or service mark to receive protection from people or businesses IN YOUR LOCALE who steal your trademark.

- If you have common law protection why bother filing an application? Well mostly, if you want state or federal TM protection, you must submit an application to the govt. entity to register the TM, and the TM registration must be granted.

But if your main goal is to stop people across town from doing business with the same name as yours, you probably don't need to bother registering your TM because without doing anything you have common law protection (generally, whoever proves trademark first use in commerce wins).

- BIG WARNING: Some states do NOT follow the "first use" doctrine. Those states adhere to the rule "first to REGISTER the TM wins." So before getting pissed off at a competitor, find out the law in your state.

- Note: don't assume do-it-yourself registration is all that expensive. In 2014 an application with the USPTO is less than $400, and in California, for example, a TM app is two very short pages and costs a paltry $70 file! In neither example are attorneys required to file a TM application.

- Bonus Tip: Registering a domain name does NOT confer TM ownership. You might have an enforceable copyright, but a domain is like a telephone number, it has zero TM value and like licenses, etc., getting a domain name does NOT count concurrently as filing a TM application. Sorry, there's no killing two birds with one stone.

More later.

Brought to you by and Copyright © - Michael Mortimer; Street Smart College™; and the Business Litigation Group™

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