General Information

TRADEMARK PROTECTION FOR A NEW PRODUCT IDEA

What is a Trademark?

   Advent Product Development provides information you can use to trademark your invention or idea. A trademark is any word, symbol, feature, or device that is used by consumers to distinguish and identify a product or service. For instance, trademarks can be words such as "Coca Cola", "Fedex", and "Sprint." Trademarks can also be slogans used in conjunction with a product or service, such as "Coke Is It" or "Just Do It". Colors can also function as a trademark, such as the color pink, which is used by Owens-Corning for fiberglass products or the colors yellow and black, which are used upon boxes of film that are sold by Kodak. In addition, distinctive package shapes can also be used as a trademark, such as the well known Evian bottle or the egg shaped container used by the L'Eggs panty hose company.

    Advent Product Development utilizes trademark laws to protect your product or idea. Trademark law prevents your competitors from using a mark (whether it be a word, slogan, or color) which is so similar that it would confuse consumers as to the source of the competitor's product or service. In other words, trademark law prevents one company from using a mark which is substantially similar to the mark of another and thus likely to confuse consumers about the origin of a product or service. Accordingly, trademark law prevents one company or entity from "ripping off" the name and good will of another by confusing the public into thinking their product is coming from your company.

Obtaining "Common Law" Trademark Rights Through Use

    Upon using a distinctive original trademark in conjunction with a good or service, you immediately start developing what are known as "state common law rights" in that trademark. These rights become stronger as you continue to use the mark and as public knowledge of your product or service increases.

    Through common law rights, you may quickly develop the exclusive right to use that mark upon those goods or services in your geographical trade area. For example, if you have used your original distinctive mark upon your product/service in the tri-state New York area, you will then have obtained rights to that mark which may be used to prevent others from using it in that same region.

    If your mark is wrongfully used by a competitor upon a similar good or service in that region, you would have remedies available in the state court where the wrongful use occurred. To make a case against the competitor, you would need to prove that the public is aware of your product in that area and thus are likely to be confused by the competitor's wrongful use of the mark.

   However, these remedies are limited to only those geographic regions where you have obtained common law rights. For example, you would not have remedies against a party who used your mark in the state of California if you have never transacted commerce in that particular state. Accordingly, if you have only been selling your product in one particular region of the country with hopes of later penetrating other regions, state common law does not afford you any protection until you actually begin transacting business in those other regions. Until that time, your mark is vulnerable in all of those other regions.