Marks generally are acquired through adoption and use. Marks also may be obtained by assignment; however, a discussion of assignments is beyond the scope of this document.
Use of a mark is unlawful, and cannot result in trademark rights, if the mark already has been appropriated by another. Consequently, when a new mark is proposed, and before it is adopted, a trademark attorney should be consulted, and a search commissioned, to determine whether the mark is available for adoption and use. Searching minimizes investments in marks that cannot be used, while preventing the inadvertant infringement of marks held by others. A mark should not be adopted, or used, if the search indicates it is likely to become confused with a mark adopted by someone else.
Search reports contain raw data concerning the use and/or registration of similar marks, culled from yellow page listings, trade directories, the Patent and Trademark Office, state trademark registers, and various public and private databases. The reports do not include opinions regarding trademark availability. Reputable firms that provide on-line information about their trademark searching services are listed in our trademark links. However, "likelihood of confusion" determinations are not for the layperson; they should always be made by qualified trademark counsel.
If the search reveals a mark to be available, the mark may be adopted, and use of the mark may commence.
In the United States, Great Britain, and other "common law" countries, rights in a mark generally are not recognized unless, and until, the mark has been used by its proprietor. Once a mark is used in the proper way, it is protected at common law, and may be registered with local and/or federal authorities.
"Civil law" countries (roughly two-thirds of the world's nations), usually do not require the use of marks prior to registration. Nevertheless, most require that marks be used within a short time after registration, usually three years. If a registrant fails to use a mark within the specified period, its rights may be held abandoned, and its registration canceled. Thus, even in countries with a civil law system, the use of marks is very important.
The use of marks is of little or no benefit, if the marks are not used properly, in accordance with trademark laws. A few tips and pointers regarding the proper use of marks, may be found in our Guide to Proper Trademark Use.
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