Trademarks act to identify the source of the goods (i.e., Pepsi) or services (i.e. LiveNation). Basically, it is a brand identifier. Most people are surprised to find out that a trademark can be more than just a word or image/logo, it can also be a phrase, color, sound, or even a smell. Who knew! Well, now you do. For example, while I can copyright my music, copyright does not protect my name or brand as Miss Krystle. I have trademark rights to my artist name, as well as my artist logo, which both go to identify me as an entertainer and recording artist. My rights exist specifically because of my use of the trademark in connection with my music (i.e., the “goods”) and music performances (i.e., the “services”). Remember, your rights come from using your trademark, not just registering it. For example, if some other artist uses the name Miss Krystle (or even Miss Krystal or Miss Crystal, which are common misspellings) in relation to music, the general public may be confused or fooled into thinking that person is me. The only exception to actual, current use of your trademark, is something called Intent to Use. An Intent to Use filing with the United States Patent and Trademark Office (USPTO) gives applicants the rights before the date that person or company actually uses the mark.
One of the issues that arises if you allow others to use your trademark (or one substantially similar) is called dilution. The law very clearly says that using the mark of another dilutes the value of the original trademark. For example, someone impersonating Miss Krystle (particularly on a continued basis), will cause dilution to the Miss Krystle brand, and will give the impression that I do not believe I have exclusive rights to my trademark.
Potential dilution of a mark was actually the very same reason my trademark for Miss Krystle was initially denied. The examiner believed my mark diluted a currently existing “Crystal Records” trademark, because both marks contained a similar word. You can imagine my response when comparing those two trademarks. I argued that the marks, both visually and sonically, are significantly different, and could not possibly be confused in any way. While I vehemently protested her initial rejection, I additionally consulted with 5 other experts in this field, who all unanimously agreed with me that the two marks were nothing alike. Despite my newfound validation that I was indeed correct, the reviewing attorney nonetheless dug her heels in, arguing that my mark would cause the dilution of Crystal Records. While I was able to devise some creative lawyering to overcome her objections, the moral of the story is that you are never guaranteed registration, and the process can become very complicated and drawn-out.
While anyone can file a trademark application with the USPTO, I strongly recommend hiring an experienced attorney in this area. A typical trademark application, from start to finish, can take 6-12 months, and legal arguments to overcome a denial may be required at the tail-end of your registration. For all these reasons, it can make all the difference to have a trademark attorney on your side.
If in need of assistance, or have questions otherwise about completing your trademark application, our office can be reached at 480-855-1842, or contact me directly at email@example.com.