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Do you have to use a trademark under USPTO? 

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leon2112 | eNoter

Posted November 10, 2013 at 10:14 PM via web

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Do you have to use a trademark under USPTO? 

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Michelle Ossa | College Teacher | (Level 3) Educator Emeritus

Posted November 11, 2013 at 3:34 PM (Answer #1)

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Your question appears to ask whether you can make use of a trademark whether it is registered at the USPTO or not. This is a common question with no simple answer. This is why.

The federal registration of a trademark by the United State Patent Office is not mandatory per se. However, doing so avoids a tremendous amount of problems ranging from infringement to dilution. It also safeguards the trademark from being abused for purposes other than what it is intended to represent. Moreover, registering the trademark at the USPTO protects what the mark is intended to represent as well. It basically freezes its use at a level where whoever tries to misuse it will encounter serious consequences at no expense to the registrant of the mark. Therefore, while it is allowed to use a trademark that is not registered by USPTO, any kind of intellectual property is protected already by Congress under 15 Title 1055 and the user of the trademark, if it is used with ulterior motives, will find dire consequences. 

Anyone who finds out that someone has been using their already published intellectual property in a tangible form (poem, song, motto, name, logo, etc that is 100% unique and reunites specific requirements, can appeal to Title 17, Chapter 1, § 102 of the USC under Copyright Law which states that 

Copyright protection subsists, in accordance with this title, in original works of authorship fixed in any tangible medium of expression...[].. Works of authorship include the following categories:

(1) literary works;
(2) musical works, including any accompanying words;
(3) dramatic works, including any accompanying music;
(4) pantomimes and choreographic works;
(5) pictorial, graphic, and sculptural works;
(6) motion pictures and other audiovisual works;
(7) sound recordings; and
(8) architectural works.
Hence your question has tremendous implications within the 21st century context where billions of people are exposed to a machinery of new words, sounds and symbols. If you come up with an "idea" and suddenly want to develop it, you may be looking into the possibility that someone on the other side of the planet may have thought of that idea already. With the ubiquitous access to the world wide web at a universal level, the number of new patents and trademarks raises and raises leaving those who have not yet learned to keep up at a losing end. Therefore, anytime you come up with an idea, make it unique enough for it to fit the role of a trademark. Do not use the marks of others as you will undoubtedly find serious consequences, particularly if you profit from the use of the mark. Also, keep in mind that intellectual property is protected under Copyright Law, under Trademark Law and under International Patent Law, where lawyers who are actually specialized in that area of study can do anything they want with a copyrighter, or with someone who infringes upon a mark, or tries to dilute it for personal benefit. 

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