Question about trademark status.

[lux]

There is an brandable .com that is dropping soon that I would like to register, but the name is listed at marksonline.com.

The status of the trademark is "Examiner's Amendment Counted - Not Mailed" and it was filed in September 2000. Does this mean the trademark was never active?

Thanks in advance for your help.

[RacerX]

directly to the source, uspto.gov. See if it has a registration number. If it does not, it has not been registered (yet). Real simple.

[jberryhill]

Whether there is or is not a trademark has NOTHING to do with whether the trademark is registered.

Can you please elaborate on the above statement?

Thanks

[jberryhill]

I've elaborated on that in other threads, but it is clear that people will continue to have odd ideas about what registration does or does not mean.

In common law jurisdictions, such as the UK, the US, Australia, and other places, trademark rights accrue by use of a term in commerce applied to goods or services in such a way that the term takes on secondary meaning in the minds of consumers as an indicator of source or origin of the goods or services, or as an indicator that goods or services so marked originate from the same source, whether or not the source is known. The term must be capable of being a trademark (i.e. not the generic term for the good or service itself), and proof of trademark rights can be shown by advertising expenditures, evidence of consumer recognition, etc.

Such common law rights arise under state law, and are limited to the actual geographic area in which the mark has been used in commerce.

If one has been using, or plans to use, the mark in interstate commerce in the US, then one might want to obtain federal registration of the trademark. Such federal registration provides constructive nationwide use of the mark and also provides constructive notice of the mark, federal jurisdiction over actions concerning the mark, etc. However, federal registration is a registration system for EXISTING trademarks, it is not a grant of a trademark right itself. Federal registration provides a trademark holder with a simple means of proof, and some handy legal presumptions about validity and ownership of the mark.

The converse is also true. Because registrations are subject to periodic renewals, it can happen that a party has ceased using the mark, and hence lost the rights in the mark, prior to expiration of the federal registration. This notion of looking in databases of registered trademarks to determine whether someone does or does not possess a trademark is a regular feature in this forum, and it is a sorely misleading notion. It can provide some helpful data, but is by no means conclusive.

Additionally, I regularly find that people do not distinguish between database entries for registrations on the Principal Register or on the Supplemental Register, or among pending applications based on use or intent-to-use. There are a number of things which one may find in the uspto database, and they do not all mean the same thing.

[RacerX]

Originally posted by jberryhill
Whether there is or is not a trademark has NOTHING to do with whether the trademark is registered.

The answer to the question was only in regard to the very narrrow scope of determining that a formally *initiated* USPTO trademark application had matured into a registered mark.

No aspect of a common law mark was addressed in RacerX's brief answer. RacerX is well aware of common law trademark rights. The answer to the question was ONLY in context on the assumed premise that a formal trademark application was already filed with the USPTO.

[jberryhill]

If the application is one based on use, then you can also obtain useful information about the claimed date of first use. You may also obtain copies of the papers filed in the application, including samples of use, examiner refusals, and applicant arguments, from one of many file retrieval services in Crystal City (where the USPTO is located). www.faxpat.com provides relatively rapid service.