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What is a trademark?

A trademark is a word, name, phrase or symbol used to identify the source or origin of a good or service provided through commerce. Trademark rights arise through USE of the trademark in association with a good or service. Without use, there is no trademark.

As soon as a trademark is used in commerce in association with a good or service, common law rights to the trademark attach. These common law rights can be effective in obtaining an injunction or a judgment against an infringer, but do not provide all of the benefits associated with state or federal registration.

State laws provides both trademark registration and enforcement. These state protections, however, are more costly, yet often not much more valuable than common law rights. Accordingly, most trademark owners opt for either more inexpensive common law or more valuable federal law protection.

Federal trademark registration provides several benefits, including treble damages and attorney fees for willful infringement. Federal registration allows use of the ® symbol and provides national constructive notice of the owner’s trademark rights. While federal trademark registrations must be renewed every ten years, trademark rights themselves are indefinite, lasting until the mark becomes abandoned, or in rare cases, generic. Tomorrow, are all trademarks created equally . . .

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