Trademarks

Trademarks and Servicemarks are symbols, words, phrases, names, sounds, etc., used to distinguish goods and services from those provided by other entities. They usually have consumer good will associated with them. Examples are McDonald's golden arches, the NBC chimes, the color pink for Owens-Corning fiberglass, and KLEENEX for tissues.

Persons who use a trademark on their goods or services which is "confusingly similar" to your trademark are infringing your trademark rights and taking advantage of your customer good will. However, descriptive terms are usually not protectable (e.g., LITE for light beer). Ordinarily, you must have actually used a trademark in the stream of commerce before you acquire rights to it.

Before adopting a trademark or company name, it is extremely important to search existing trademarks and tradenames for those in use which may be confusingly similar to the mark or name you are considering. This can help to avoid future nastiness from persons who feel that you are infringing their trademark rights.

It is also important to register your trademarks which are or are expected to generate significant customer good will. Preferably, this should be done federally, which gives you rights throughout the United States and the right to use the þ symbol, but state registrations are also possible. You can use the TM or SM symbols on marks you consider yours, without regard to whether a registration application has been filed.

Federal Registration. Federal trademark registration applications require a filing fee of $275 per class of goods and services for which you seek registration. The U.S. Patent and Trademark Office performs a search for confusingly similar marks and examines the application for other irregularities. The process usually takes about one (1) year. Federal registrations last for ten (10) years, but an affidavit of continued use must be filed during the fifth year. The registrations are renewable. Information is available from:

• Commissioner of Trademarks
  Washington, D.C. 20231
  (703) 308-HELP

International Registration. The U.S. has recently signed on to the Madrid Protocol, an international treaty that permits filings in a number of countries simultaneously. Trademark filings may also be made directly in individual foreign countries and certain groups of countries (e.g., European Community).

New Mexico Registration. Protection is accorded only within the state. A federal registration supersedes any state registration, so a federal search should be done even if you intend to use or register the mark only in New Mexico. Forms are available from:

• Office of the Secretary of State
  Executive Legislative Building
  Santa Fe, New Mexico 87503
  (505) 827-3600