One of the requirements to register a trademark that immediately separates it from copyrights or patents is the requirement to actually use and apply your mark. When you register a copyright or patent, it means that you have created something and you have the sole legal right to use, license, or distribute it. However, whether or not you use it is up to you. That’s not the case with trademarks.
A trademark is a symbol, word, or words legally registered or established by use as representing a company or product. Your logo, your slogan, your product’s name, or even the distinct color of your product could all be trademarks. Trademarks are registered with the United States Patent and Trademark Office (USPTO). Once registered, you have the sole legal right to use your trademark and can legally prevent anyone else from taking it. You don’t have to register your trademark in order to use it.
If you do decide to register your trademark with the USPTO, one of the requirements is “Use in Commerce.” Use in Commerce simply means that the trademark you are registering is actively being used on the market. If your trademark relates to a physical good you are selling, it should appear either on the physical product or on marketing material for the product. The same goes for services, where the trademark should be used on promotional or direct material being used.
Importantly, you do not have to already be using the trademark in commerce when you first apply for registration. The trademark registration process can take a long time, so you may want to begin it before your actual product hits shelves. This is why you can file your application in two different ways.
E-commerce brands need a tailored intellectual property strategy to make the most of their work. If you file your trademark application as “1A,” it means that it is being used in commerce. However, you can also file your trademark application under “1B.” “1B” means that the trademark is not being used in commerce yet. By the time your trademark application has been processed and is being reviewed by a USPTO agent, you have to have progressed to the “1A” stage. Only “1A” applications will ultimately be registered.
Part of the trademark application process also involves creating a Statement of Use, which explains exactly how you are using your trademark in commerce. This will explain to the agent the exact way you are currently using the trademark and plan to consider using it in the future. You also have to submit proof of the use, which is known as Specimens.
You cannot have a trademark just to have it. That is what sets it apart from many other forms of Intellectual Property – you have to actually be using it on the market to avoid losing it. As long as you continue using it in commerce, you can continue to renew your registration! For help with all your trademark and other intellectual property needs, contact McDermott IP Law today.
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