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Trademark protection in the U.S.A.

Trademark protection in USA dates back to the colonial period when American Common Law recognized some Intellectual Property rights. This tradition has its trace in history, because many American companies thrive on their marketing strategies. These companies know the importance of registering and protecting their trademark in order to promote their brand.

For this reason, registering a trademark in USA is rather quick, cheap procedure compared to other countries, and even unregistered trademarks may benefit from a certain legal protection if they have already been used in commerce. If this is your case, you must be able to prove that your use of the trademark is well established in your interstate commercial activity. This is not always easy to prove and it is not cost-effective to take position against your competitor if you skipped your trademark’s registration stage.

At a federal level, the United States Patent and Trademark Office (USPO) manage trademark registration in USA. Because of the legal value of the commercial use of trademarks, it is feasible to enter the American market before applying for a registration. Nonetheless, it is also possible and it is often advisable to file the so-called 'intent to use' trademark application. You can file an intent-to-use (ITU) application if you make a sworn statement of intention, but be aware (!) that in case of legal dispute you must prove your efforts for 'using in commerce' your trademark soon after the application date. Later, with a series of specific procedures, you should be able to convert the (ITU application into the ordinary one (use-in-commerce application).

Before any application, is important to conduct a thorough research of possible trademarks that could be confused with yours. Attention! This research is under responsibility of the applicant. USPO offers a search system (Trademark Electronic Search System, TESS) that can be used conducting this research, but it must be kept in mind that the search engine does not take into account trademarks that are unregistered at federal level, but are used in commerce, which can even prevail over registered ones.

Descriptive marks can be protected (so-called weak protection) only if they are considered distinctive because of their use in commerce for more than 5 years. The federal Office adopts strict parameters to assess the Class of products or services to which your trademark is related. In order to avoid likelihood of confusion or many other grounds for refusal of registration that may be found by the Office, you should consider asking for legal advice.

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