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What Is Trademark Prosecution?

Part of an application to register a trademark.
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  • Written By: Patrick Roland
  • Edited By: R. Halprin
  • Last Modified Date: 16 December 2014
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Trademark prosecution is the legal process of registering a trademark for a product or service. A trademark is a distinct symbol that represents a company and can take the form of anything from a graphic design to a smell. The process involves filing a number of different documents, all pertaining to the trademark's strength, type, and clearance. Registering this symbol provides many legal benefits and rights to the trademark holder.

Every country has different stipulations and laws pertaining to trademark prosecution, so prosecution differs in some ways depending on the jurisdiction. Generally, though, the prosecution is the filing of the initial trademark application and then the review of the application performed by a government examiner trained in trademark law and research. Depending on the amount of trademark applications, the trademark registration process can take months or years.

A trademark is anything that represents a company's image, service, or product. Trademarks typically consist of phrases and logos, but can also even run the gamut from scents, certain colors, unique packaging, and even sounds. The trademark prosecution process is held to determine that this trademark, no matter what it is, is unique to that company and is unlike any other trademark currently in existence.

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When prosecuting, a trademark examiner looks mainly at three things: strength, type, and clearance. The strength of a trademark refers to how distinct it is, because the more distinct a mark the less likely infringement can occur. The trademark type does not refer to its physical characteristics, but rather focuses heavily on text-based trademarks and how similar it is to other slogans and trademarked words. Clearance is another step that aims to ensure the trademark in question is unique or that it is different enough from an existing mark to nonetheless stand alone. The trademark prosecution process is very labor intensive because trademarks from various industries and eras must be compared to the new symbol in order to determine its unique qualities.

Once a trademark is officially accepted through trademark prosecution, the holder of the trademark is protected from trademark infringement. This can occur when another company uses a mark, either registered or not, that is too much like the original, which can potentially harm business, dilute the trademark, or result in consumer confusion. Owners of a trademark use a specific symbol, such as a ®, to emphasize the trademark's registered status. A trademark is only valid in the country in which it is registered and generally must be registered individually in other countries where the company does business.

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Logicfest
Post 2

@Logicfest -- Fortunately, protecting a trademark usually takes little more than writing a cease and desist letter. If someone gets one of those, they will usually stop violating a trademark to avoid going to court. Those cases rarely hit the media. Long, drawn out trials do attract the attention of the media, though.

Melonlity
Post 1

A problem with trademarks is that you can lose your trademark protection if you do not actively protect it by prosecuting people who violate it (just ask any trademark attorney -- don't take my word for it).

That is why you have colleges (for example) throw a fit when businesses are using their trademarked logos and such. The colleges might look kind of jerky to the general public, but there is a reason they get so hot and bothered. If they don't protect their trademarks, those trademarks can fall into the public domain.

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