Patents, Trademarks, and Copyright

What is a trademark or service mark?

• A trademark is a word, phrase, symbol, design, or smell (or some combination of these) that identifies the source of a product or service.  The U.S. Patent and Trademark Office has information here: What is a trademark?

• A service mark is a trademark, except that it specifically identifies a service and not a product.

• The terms "trademark" and "mark" refer to both trademarks and service marks.

Usually a mark for goods appears on the product or its packaging, while a service mark appears in advertising for the services.

A trademark is different from a patent or copyright. A patent protects an invention. A copyright protects an original artistic or literary work. 

Federal trademarks, issued by the USPTO, are valid in all 50 states. In addition, each state issues its own trademarks.

The U.S. Patent and Trademark Office provides extensive trademark information: Trademark Basics

Important Databases - United States Patent and Trademark Office 

• Trademark Search System - This search engine allows you to search the USPTO's database of registered trademarks and pending applications to find marks that may prevent registration due to a likelihood of confusion refusal.  Includes records back to 1984.

  • The search interface looks easy to use but isn't.  USPTO staff members are making gradual improvements.  Using Global Brand Database or TMview will be easier and both offer more comprehensive searching.

• Trademark Design Search Manual - if your mark includes a design element (i.e. logo), you will need to search it by using a design code.

• TEAS - the Trademark Electronic Application System - for online filing.

  • TEAS is being replaced by the Trademark Center.

• TSDR - Trademark Status & Document Retrieval - allows you to see the filings of others.

Trademark Searching - Especially for when you are planning to register your own

The usual advice is to search everywhere you can and there are many places to search.  Also, if you are planning to apply for a trademark:

• Try not to get too attached to a trademark before you check it out.
• Note considerations on Likelihood of Confusion. 
• Remember that claims on a trademark can include "common law" rights; that is, no registration.

Good places to search

• The internet.
• Global Brand Database: The World Intellectual Property Organization’s search engine for trademarks from national and international sources.  Includes the U.S.
• TMview, a database of trademark applications and registered trademarks from all EU national IP offices, the EUIPO, and several international partner offices outside the EU, including the U.S.
• DESIGNview - Search designs registered across the European Union.
• Domain name registries: The Internet Corporation for Assigned Names and Numbers page for domain name registrants

USPTO staff offer this advice:

• Conducting a Trademark Search
• including: Comprehensive clearance search for similar trademarks

State Trademark Information

• Texas Trademarks -  The Texas Secretary of State’s web site offers Texas trademark forms and a searchable database of Texas trademarks.  There is a charge for searching the database.  

• State Trademark Information Links - find information on trademarks specific to all 50 states and D.C.

• U.S. state trademark and business registries: The USPTO page for links to trademark registration information for the 50 states, as well as Washington, D.C., and Puerto Rico

For Historical Investigation

• Index of Trademarks issued from the United States Patent and Trademark Office - Hathi Trust Digital Library, University of Michigan.

  • Some volumes may be missing or hard to find; try Google Books.  For example, the Index of Trademarks Issued from the United States Patent Office, Volume 934, 1934 is more easily found there.

  • If you do not find a mark in the Index, try expanding your search to the Trademark Gazettes --- see below.

  • Once found, a Trademark Number (treat this as a "registration number"), even for a dead trademark, may be searched in TSDR - Trademark Status & Document Retrieval.  Current and historic registration certificates are included.

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• Annual report of the Commissioner of Patents for the year ... / U.S. Patent Office - from the Hathi Trust collection. (Trademarks listed, beginning in 1870.)

-Missing 1872 - 1875.

• Annual report of the Commissioner of Patents for the year / United States Patent Office. 1865 - 1919 (with trademarks listed beginning in 1870).  From the Smithsonian Library.

• RUSS's Guide to the Gazettes at Hathi Trust - use this to help make sense of these next two entries.

Official Gazette of the United States Patent Office - In this period, trademark records were in the same volumes with patent records - these volumes are thanks to the Hathi Trust.

Official Gazette of the United States Patent Office. Trademarks. and  Official Gazette of the United States Patent and Trademark Office. Trademarks.  Later, trademark records were published in a separate series from patent records.  Again, these volumes are thanks to the Hathi Trust.

The name of a business may also be used as a trademark but the two aren't exactly the same.

• A business name identifies the organization producing a product or offering a service
• A trademark identifies a product or service
  • The name may be used for both the organization and the product or service.  For example when:
    • the business provides a service such as marketing or accounting
    • the organization's name is also used for a product or service, as 
      • Tesla and Tesla vehicles
      • Google and the Google browser service

The Small Business Administration has detailed business name advice, also including domain name (website address) as a business name.

Trying to Avoid Business Name Conflict:

Business directories are a good place to check for organization names that are already in use.  Here are two with broad coverage:

Claiming a name and for possible searching:

• We expect DBA (doing business as) filings to be made at the office of the County Clerk (or similar local official)
• State offices and databases (such as the Office of the Texas Secretary of State and SOSDirect for the state of Texas) for registrations of:
  • Companies incorporated in the state.
  • Limited partnerships filed in state.
  • State trademarks such as Texas Trademarks.