Trademark & Patent in USA

A trademark is a word, name, symbol, or device that is used in trade with goods to indicate the source of the goods and to distinguish them from the goods of others.

A trademark is a word, name, symbol, or device that is used in trade with goods to indicate the source of the goods and to distinguish them from the goods of others. A servicemark is the same as a trademark except that it identifies and distinguishes the source of a service rather than a product. The law pertaining to these two kinds of marks is nearly indistinguishable.

Trademark rights may be used to prevent others from using a confusingly similar mark, but not to prevent others from making the same goods or from selling the same goods or services under a clearly different mark. Trademarks which are used in interstate or foreign commerce may be registered with the US Patent and Trademark Office (USPTO).

Trademark rights arise from use of the mark, not from registering it. Even without a registration, one acquires rights. So why seek a registration? Registration confers the following advantages onto the holder:

  • Constructive notice to the public of the registrant’s claim of ownership of the mark
  • A legal presumption of the registrant’s ownership of the mark and the registrant’s exclusive right to use the mark nationwide on or in connection with the goods and/or services listed in the registration
  • The ability to bring an action concerning the mark in federal court
  • The use of the U.S registration as a basis to obtain registration in foreign countries
  • The ability to file the U.S. registration with the U.S. Customs Service to prevent importation of infringing foreign goods
  • Other non-legal benefits, such as a better bargaining position with an adversary or potential buyer.

Patents in USA

A patent for an invention is the grant of an exclusive right to prevent others from doing what’s specified in the claims of the patent. A patent is issued by the United States Patent and Trademark Office. Generally, the term of a new patent is 20 years from the date on which the application for the patent was filed in the United States or, in special cases, from the date an earlier related application was filed, subject to the payment of maintenance fees. U.S. patent grants are effective only within the United States, U.S. territories, and U.S. possessions.

The right conferred by the patent grant is, quoting the patent statute, “the right to exclude others from making, using, offering for sale, or selling” the invention in the United States or “importing” the invention into the United States. What is granted is not the right to make, use, offer for sale, sell or import, but the right to exclude others from making, using, offering for sale, selling or importing the invention. Once a patent is issued, the patentee may enforce the patent through the use of a civil patent infringement lawsuit.

There are three types of patents:

  1. Utility patents may be granted to anyone who invents or discovers any new and useful process, machine, article of manufacture, or composition of matter, or any new and useful improvement thereof;
  2. Design patents may be granted to anyone who invents a new, original, and ornamental design for an article of manufacture; and
  3. Plant patents may be granted to anyone who invents or discovers and asexually reproduces any distinct and new variety of plant.

Although the US Patent & Trademark Office offers inventors the option to file a provisional patent application, there is no such thing as a provisional patent. A provisional patent application is merely a placeholder, or a device to lock in an inventor’s filing date. Nonetheless, there are situations where a provisional application is the best option. A nonprovisional patent application or PCT (Patent Cooperation Treaty) application must be filed within 1 year of the provisional application filing date or the applicaiton becomes abandoned.

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