We work in federal and Maryland trademark law and regularly help entrepreneurs establish and protect their marks. That covers clearance searches, applications to the USPTO, maintenance filings, and enforcement against infringement. Call (410) 752-9300 or use the contact form on this page.
What a trademark is
A trademark is a mark used in trade that identifies the source of a product and distinguishes it from others. Most are words, logos, symbols or phrases. Protection can also extend to scents, colors and patterns, provided consumers associate the feature with a particular source rather than with the product itself.
That last condition is what makes the well-known examples work. Tiffany & Co.’s particular shade of blue functions as a trademark. Burberry’s tartan is protected, and it is among the most copied patterns in fashion. The leaping cat on a Jaguar tells you who made the car before you read a word. Marks like these can account for a very large share of a company’s value.
Why registration is worth the trouble
You do not have to register to have rights. Using a mark in commerce establishes rights in it. Federal registration with the United States Patent and Trademark Office adds a great deal on top of that.
- You can bring an infringement action in federal court.
- Your U.S. registration becomes a basis for securing protection in foreign countries.
- Public notice of your ownership goes into the USPTO’s databases, which is what makes other people’s clearance searches find you.
- The ® symbol becomes available to you, and it may only be used once a mark is federally registered.
- A legal presumption of ownership applies if your claim gets challenged.
- Your rights become nationwide instead of limited to the area where you actually trade, which matters if you plan to expand or sell online.
Registration protects consumers too, who are entitled to know the source of what they buy. That is the public purpose the whole system rests on.
Search before you commit
Before adopting a mark, and certainly before printing packaging or launching a campaign, check that it is not already registered or in use. A clearance search costs very little next to rebranding, and far less than defending an infringement claim you could have avoided. Businesses skip this step more than any other and regret it more expensively.
Trademarks and service marks
A trademark identifies the source of goods. A service mark identifies the source of services. The law treats them substantially alike, and “trademark” gets used to cover both.
Proof of use, and why specimens matter
U.S. trademark rights do not go to whoever files first. They follow use. There is no race to the USPTO in the sense people imagine, because what the application process turns on is proof that you are actually using the mark in commerce.
“Use” means the mark is attached to goods that are sold or marketed, and you have to submit a specimen demonstrating it. Specimens have to meet specific requirements. The mark must appear on the item or its packaging, in the way customers encounter it. A flyer advertising a new line of kitchen equipment will not do. A label appearing on the kitchen items themselves will.
Two kinds of application
You will file either a use in commerce application under 15 U.S.C. § 1051(a), where you are already using the mark, or an intent to use application under 15 U.S.C. § 1051(b), where you have a bona fide intention to use it but have not begun yet. An intent to use application still requires that use actually begin and be proven later.
The distinction is about whether you are already using the mark. It has nothing to do with whether the mark covers goods or services.
Describe your goods and services carefully. Some elements cannot be changed after filing, so aim to be broad enough to cover where the business is heading while staying specific enough to be acceptable. “Kitchenware” on its own is unlikely to suffice. “Kitchenware, namely plates and glasses” is the shape of it.
What happens after you file
An examining attorney reviews the application and may issue an Office Action setting out refusals or requirements, which you have to respond to within the period stated. Extensions are available on payment of a fee. Once an application clears examination, the mark is published for opposition, giving third parties a window to object. If no opposition succeeds, the mark proceeds to registration, or to a Notice of Allowance where the application was based on intent to use.
Note that the USPTO overhauled its filing systems in January 2025, retiring the former TEAS platform in favor of Trademark Center, with a revised fee structure. Current requirements and fees sit on the USPTO’s trademarks pages.
Keeping the registration alive
Registration is not permanent by default. Maintenance filings are required, specifically an Affidavit of Use under Section 8 between the fifth and sixth year following registration, and again within the year before the end of each ten-year period after registration. Miss a maintenance deadline and you can lose the registration outright, which is an avoidable way to lose a valuable asset.
Selling and licensing a mark
A trademark can be sold or licensed much like other property, subject to particular rules. A licensor has to maintain control over the quality of the goods or services offered under the mark, or the license can undermine the rights it was meant to exploit. See our page on licensing agreements.
Talk to a Maryland trademark attorney
Whether you are clearing a new name, filing an application, or dealing with someone using your mark, call (410) 752-9300 or use the contact form on this page. See also trademark infringement litigation.