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Trademarks - Acquiring Rights

Posted by Dale Berkebile on Wed, Sep 16, 2009

Previously we posted that formation of a business name is not sufficient to establish trademark rights. Generally, in order to acquire rights in and own a trademark, one needs to:

  1. be the first to use the mark;

    • You must be the first to use the mark. Furthermore, the mark that is chosen should be sufficiently different from others' marks in order to avoid confusing consumers as to the source of goods or services.

    • Limited exception: A trademark application can be filed prior to actual use that allows reservation of a mark for a limited time when there is a bona fide intent to use it.

  2. in commerce in connection with goods or services.

    • Using the mark in commerce means using the mark “the ordinary course of trade.” This means that establishing rights can vary with the industry in which the mark is used. The typical manner of establishing use for a product is the sale of the product where the mark associated with the product. The typical manner of establishing use for a service is use of the mark in connection with a sale of the service. Typically, no rights are acquired by merely incorporating, organizing an limited liability company, filing an assumed name certificate, or registering a domain name.
Upon acquisition of rights, the trademark owner may lawfully place TM (for products) or SM (for services) near the mark to provide notice of your claim to exclusive ownership.


This article was written by a strategic business partner of Brandwise.

John Lindsay is an intellectual property attorney focusing on patent, copyright, trademark, and technology law for startups
and small businesses. He can be reached at 214-736-4306 or john@StartupIPServices.com. His website is


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Tags: Trademark, Servicemark, Legal Issues

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