Intellectual Property Rights During A Pending Trademark

Trademarks provide legal protection for brand names and logos, preventing other businesses from copying them or using similar marks. An individual or company with a logo, phrase, design, symbol, or word that identifies goods or services may apply for a trademark with the United States Patent and Trademark Office (USPTO). Although applying for a trademark has the end goal of protecting the intellectual property (IP) rights of the business, how does the trademark owner protect his or her IP rights when a trademark is pending?

Although anyone can use the trademark symbols TM or SM, with or without a pending trademark application, to protect intellectual property from competitors, the best defense against competitors is to apply for an official trademark with the United States Patent and Trademark Office (USPTO). After the federal government approves a mark, the trademark owner may use the legally significant registered trademark symbol (®). Once a trademark is legally registered, the registered trademark symbol conveys ownership, letting other businesses know that the mark is registered and cannot be copied. In other words, it gives competitors official notice of the intellectual property rights of the owner.

Not Using the Registered Symbol Early

Trademark applicants must wait until they have been given official approval from the USPTO before using the registered trademark symbol (®). Although using TM or SM is allowed at any time, using the registered symbol while a trademark is still pending is a criminal or civil offense in many jurisdictions.

If you are ready to learn more about the differences between TM or SM and the registered trademark symbol and how to protect intellectual property rights during a pending trademark, a knowledgeable attorney at Amini & Conant may be able to help.

Applying Early

Individuals and companies may be able to protect their intellectual property rights by applying for trademarks early. The term “early” is relative as it relates to applying for trademark registration. The USPTO usually awards a trademark to the first applicant if two or more individuals or companies apply for the same trademark. Therefore, applying for trademark registration as soon as possible can help trademark owners avoid potential conflicts with competitors.

Conducting a Search

When a trademark is pending, the owner should consider protecting his or her intellectual property rights while avoiding conflicts with the intellectual property rights of others. Before the USPTO officially approves a trademark, the owner may not know whether another company is using a similar mark. Without conducting proper research, the company or individual could infringe upon another’s trademark rights. Businesses can use marks while trademarks are pending, and doing so may be best. However, anyone who wishes to create and use a trademark should research carefully to ensure that the mark is original. Although the results cannot guarantee registration, according to the USPTO, a free search system called the Trademark Electronic Search System (TESS) is available for trademark owners to conduct their searches.

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