This article represents the second in a series regarding trademarks. To read the first article in this installment, click here.
On the surface, the answer to the question “Who can register a trademark?” is a simple one: The person or business entity that owns it.
Easy, right? Well, it can be—but only after one has a clear understanding of what constitutes a trademark and an owner.
What is a Trademark?
Remember that lemonade stand you operated every summer as a kid? Let’s assume you came up with a unique and catchy name for your lemonade that you used whenever you sold it. Whether you knew it or not, by selling your product under that name, you created and owned a trademark. That trademark represented the brand you built.
Like the lemonade itself, your trademark was property, meaning it could be bought, sold, licensed, leased, lost, stolen, damaged (diminished), and so on. Unlike the lemonade, however, your trademark wasn’t created until you began using it. In other words, the name only became a trademark once you put it to work selling your lemonade—not when you first thought it up.
Defining Ownership
Generally, the person, corporation, or other legal entity that uses the mark owns it. While seemingly straightforward, the arrangement is one that should be spelled out in business agreements. Clearly identifying the owner, in writing, is the surest way to avoid future disputes, such as a particular partner claiming he or she owns the trademark (not the partnership). The same goes for an employee who may have coined the trademark on company time.
Ownership and Geography
An unregistered trademark exists only in the geographic location where it is used, leaving the door wide open for another individual or entity to create and own the same trademark in a different location. Registering your trademark immediately expands the geographic reach of your trademark to the borders of the state or country where you register it. Do this, and you will prevent others from creating new infringing trademarks or expanding the geography of their existing marks within that area.
Ownership and Lifespan
An unregistered trademark exists only during the use of the trademark. This is true even if you stop using the trademark temporarily with the intent to use it again in the future. Registering your trademark will guarantee it remains off limits to competitors, even if you do put it on the back burner for a time.
Whatever business you are in, trademarks represent a potentially vital asset. To schedule a free consultation about how you can use them to protect your work, feel free to contact me directly at the number listed below.
Mark B. Thornton
Mark@snjlegal.com
801.365.1015