Although many people think of federal trademark or service mark protection, if your mark will not be used in interstate commerce you may want to consider an Ohio filing. Registration of a mark provides two things. First, it provides actual public notice. By registering the mark with a central filing agency, the mark is available for public scrutiny. This benefits both the owner, who seeks exlusive use of the mark, and a potential filer who seeks to ensure that her mark does not conflict with a mark already in use. Second, registration of a mark might be used as evidence in the event an infringement claim is pursued by the registrant.
A trademark is “any word, name, symbol, device, or combination of any word, name, symbol, or device, that is adopted and used by a person to identify and distinguish the goods of that person, including a unique product, from the goods of other persons, and to indicate the source of the goods, even if that source is unknown.”
A service mark is “any word, name, symbol, device, or combination of any word, name, symbol, or device, that is adopted and used by a person to identify and distinguish the services of that person, including a unique service, from the services of other persons and to indicate the source of the services, even if the source is unknown.”
While a mark may meet either of these definitions, there are several restrictions to consider first. Any mark that consists of or comprises any of the following will not be accepted for filing:
- Immoral, deceptive or scandalous matter;
- Matter that may disparage or falsely suggest a connection with persons living or dead, institutions, beliefs or national symbols, or bring them into contempt or disrepute;
- The flag or coat of arms or other insignia of the United States, or of any state or municipality, or of any foreign nation, or any simulation thereof;
- The name, signature or portrait of any living individual, except with her written consent;
- A mark which, when applied to the goods or services, is “merely descriptive,” “deceptively misdescriptive,” or is primarily geographically descriptive;
- A mark that is primarily merely a surname;
- A mark that resembles a trademark or service mark previously used in Ohio by another entity and is not abandoned, and is likely to cause confusion, mistake or is deceptive; or
- A mark that resembles a mark registered in the U.S. Patent and Trademark Office by another entity and is not abandoned, and which is likely to cause confusion, mistake or is deceptive.