Much like the availability of a corporate name in a given state does not necessarily provide superior trademark rights to use the name in commerce, the availability of the domain name is not an indication either. A company could have a trademark name on a product or service, but not have acquired the domain name.
The availability of the domain name should be one part of a comprehensive search, which Trademark Engine offers, to help evaluate the strength of a brand name or slogan and the likelihood of a trademark being approved.
Using a domain name as part of a brand that sells goods or services may establish common law trademark rights. A “common law” trademark can be established when a name, logo or slogan is used in commerce, even if it is not registered. Common law rights, however, are limited to the geographic area where the mark is actually used as opposed to the nationwide protection typically established by registration of a mark with the USPTO.
The geographic limitations of an unregistered mark can make it difficult to expand a business. On the other hand, a person using a mark in a limited geographic area could be boxed in by someone else who offensively registers a similar mark. In addition, registration of a trademark customarily gives the person holding the registered trademark a leg up in court as to the validity of the mark and the date of usage in later trademark infringement litigation, if it comes to that. There are also favorable remedies available to registered trademark owners in the event of litigation. Finally, once a trademark is accepted by the USPTO, it should be maintained in the USPTO database, which can discourage others from using the mark in the future. Future companies should be on notice that the mark is already spoken for, which should in turn help avoid at least some disputes.
General benefits to registering a mark:
- Nationwide protection
- Presumed right to the exclusive use of the mark nationwide
- Presumed validity of the mark in a lawsuit
- Additional remedies in court
- May increase the value of the company
- May discourage others from trying to also use the mark
- You can record the mark with the U.S. Customs and Border Protection, which may help stop importation of infringing or counterfeit goods into the U.S.
- The right to use the ® symbol
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