A trademark clearance search is an integral step in the trademark selection process that enables the trademark attorney to evaluate the availability and registrability of a proposed mark. The clearance search is an essential tool, because in the United States, trademark rights are acquired on a first to use basis. This means that an individual or an organization acquires trademark rights by being the first in a given market to use the mark. Once those rights have been acquired, the trademark owner, “senior user,” has the right to prevent a subsequent or “junior user” from using confusingly similar marks in any manner that is likely to cause confusion a...
Your company’s trademark(s) are extremely valuable assets. Therefore, proper use and policing of your mark(s) are essential to protecting what may be your company’s most valuable asset – its good name. Trademark rights are acquired by actual use. Once you have established trademark rights, the rights can last indefinitely. However, it is important to note, failure to prevent others from infringing on or misusing or your mark, may result in a loss of trademark rights. The following guidelines for proper trademark use apply to advertising and promotional material, packaging, displays, label, signs, correspondence, websites, and any other media used to pr...
Descriptive Fair Use. Arises when one uses another’s trademark in its ordinary and descriptive context to describe a product or service. The rationale for this use is that the trademark owner should not be permitted to monopolize everyday terms that competitors and others need to describe a product or service. Therefore, owners of strong marks which are found to be less descriptive and more distinctive trademarks are less vulnerable to the descriptive fair use defense.
To qualify as descriptive fair use, the following elements must be met:
