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What is a trademark or service mark?

A trademark is a word, phrase, symbol, or design, or a combination of words, phrases, symbols, or designs, that identifies and distinguishes the source of the goods of one party from those of others.

A service mark is the same as a trademark, except that it identifies and distinguishes the source of a service rather than a product.The USPTO uses the terms “trademark” and “mark” to refer to both trademarks and service marks. [In Canada, a trademark can be used for either a product or a service.]

Is registration of my mark required?

No. You can establish rights in a mark based on its legitimate use. But in the United States, owning a federal trademark registration on the Principal Register secures the following advantages:

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; and

The ability to file the U.S. registration with the U.S. Customs Service to prevent importation of infringing foreign goods.

When can I use the trademark symbols TM, SM and ®?

Any time you claim rights in a mark, you may use the “TM” (trademark) or “SM” (service mark) designation to alert the public to your claim, regardless of whether you have filed an application with the USPTO. However, you may use the federal registration symbol “®” only after the USPTO actually registers a mark, and not while an application is pending. Also, you may use the registration symbol with the mark only on or in connection with the goods and/or services listed in the federal trademark registration.

—from the U.S. Patent and Trademark Office

There are, of course, limits to what you can trademark. Indeed, it’s often frustrating to find that you can’t trademark the simplest names. That’s because the U.S. Patent and Trademark Office requires a mark to be “distinctive” and not simply “descriptive.” For instance, you can’t get a trademark for a health resort called “Spa,” because it’s merely descriptive. But you almost certainly could trademark the name “Spa” for a brand of body lotions (assuming it wasn’t already trademarked by someone else).

In fact, if you’re inventing a whole new product category, you may need to come up with a generic way to describe the category in order to trademark your chosen name. A client of mine, Patrick McConnell, invented a dry-land snowboard, which he called the MountainBoard. To get that name trademarked, however, Patrick had to come up with a generic term—“all-terrain board”—to avoid his brand name’s being viewed as merely descriptive.