TRADEMARKS

The term "trademark" includes "any word, name, symbol, or device or any combination thereof

1. used by a person, or
2. which a person has a bona fide intention to use in commerce and applies to register on the principal register established by the Trademark Act of 1946,

to identify and distinguish his goods, including a unique product, from those manufactured or sold by others and to indicate the source of the goods, even if that source is unknown."

SERVICEMARKS: A service mark identifies and distinguishes the services of one company from another. The definition of a service mark is precisely the same as a trademark, except that it refers to the services a company provides as opposed to the goods it or others sell.

The purpose served is to identify in the minds of the consuming public the source of the goods and thereby provide a purchaser an easy means by which to choose between competing products. If the trademark is strong, it usually indicates a successful franchise which has served the needs of the public by providing reasonably merchantable goods at a fair price. If the goods or services that a company sells are not perceived by the relevant public to be of good quality, the trademark or service mark will never achieve strength. Thus, the product often drives the mark. Once attained, however, the strong mark will propel the earnings of the business for a significant period through good times and bad. A trademark or servicemark also increases the size of a companys balance sheet by providing a valuable asset. If the company is sold, the trademark is viewed as part of the goodwill of the company, which is conveyed along with the inventory, the plant, contracts in force and other assets. Since goodwill is usually a subjective consideration, a trademark which is easily recognizable increases net worth immeasurably.

If a company chooses a trademark which can be registered on the Principal Register of the United States Patent and Trademark Office it indicates that it intends to do or is doing business in interstate commerce. Once registration has been approved and a registration number issued it is permissible to place a small ® next to the product or service. This alerts the public that your mark is a symbol of quality. It also alerts competitors that you are entitled to certain statutory rights by the Lanham Act of 1946.

Should the company suspect that infringement of its mark is taking place, registration with the USPTO permits the company to petition the court for injunctive relief (preventing the competitor) from continuing to display a mark which is "likely to confuse" the public. The court may also award reasonable attorneys fees, costs of suit, order the disgorging of profits made by the offending company and treble any damages sustained by the plaintiff.

In this time of internationalization, a registered trademark also protects a company from foreign infringement. The United States Customs Service will bar the importation of an apparent infringing mark and seize goods which are marked by a counterfeit trademark. The goods will never reach the consumer market and are returned to the country of origin. Moreover, a registered trademark, as the result of certain treaties that the United States has ratified, has certain protection in those countries that also agreed to the terms of the treaty.

So long as a company continues its use of the mark in interstate commerce the life of the trademark or servicemark is indefinite. It will continue in perpetuity, until its usage ends. This is an important and distinguishing feature of trademarks which sets them apart from copyright and patents which have lives determined by statute.

Finally, Congress and the President have supplied companies with new tools in recent years to fight infringement. In 1995, the federal government enacted the Trademark Dilution Act, which protects "famous" trademarks from infringement. In 1999, in light of the many names which flooded the internet and the consequent "blurring" and infringing of marks, the Anti-Cybersquatting Act was signed. It sought to prevent parties from registering names on the internet for the purpose of selling them back to trademark owners at a handsome profit. It did away with the possibility of dilution of many famous and not so famous marks by those persons who registered the names in "bad faith," i.e., resale to the true owner.

In all, a trademark ought to be viewed as a necessity by any company which prizes its existence and the products or services it offers to the public.