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Can I file a trademark or copyright for a product name?

Attorneys are often asked “can I file a trademark or copyright for a product name?”

Generally, an application for a federal trademark registration can be filed for a word-only, word-and-graphic, and/or graphic (e.g., logo) trademark that is used to identify the source of goods or services in interstate commerce.

There are some basic requirements, however. For example, the trademark sought to be registered can not be confusingly similar to a mark already being used by someone else. In addition, the mark cannot be generic (e.g., the terms “gas station” used to identify a “gas station”). Merely descriptive marks can be difficult to register, and the Trademark Office Examiner will often require that the mark be registered on what is called the supplemental register (as opposed to the principal register), until the owner of the trademark can be shown that the trademark has acquired secondary meaning.

Other types of trademarks are easier to register. For example, suggestive (e.g., “hot chocolate” to identify sun tan lotion), arbitrary (real-words used to describe something totally different, e.g., “Apple” to identify a computer), and fanciful (made up words, e.g., “Xerox”) trademarks can be registered on the principal register without any showing of secondary meaning.

Suggestive, arbitrary, and fanciful trademarks are also considered stronger marks. That is, these trademarks are typically afforded broader protection against infringers, with arbitrary and fanciful marks often being afforded the strongest protection.

Those seeking trademarks often initially propose descriptive and suggestive marks. While it is possible to file a registration application and argue that the trademark is suggestive (and not merely descriptive), the applicant may have to amend to the supplemental register if the Trademark Examiner disagrees and asserts that the trademark is merely descriptive.

Finally, it is a good idea to work with a trademark attorney, and conduct a professional trademark search before using a mark, to reduce the possibility of infringing on someone else’s trademark rights.

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Mark Trenner is an attorney licensed in Colorado and to practice before the United States Patent and Trademark Office. Mr. Trenner has over 15 years experience in the intellectual property field. He started Trenner Law Firm 10 years ago to serve independent inventors, small and medium size businesses, and large corporations. General Information Only - Not Legal Advice.

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