a. Registration

A trademark (or service mark) is a form of property that is established through use in the marketplace or via registration with a trademark office. However, lack of registration may inhibit the holder's right to enforce the trademark against infringers. The application process ensures the holder's products or services are properly identified. The registrar determines that the mark is not merely descriptive, and that it will not be confused with any existing or applied-for trademarks.[1]

Trademark holders have exclusive right to use the mark in relation to the products or services it was registered for, to license the trademark for use by third parties, and to prevent unauthorized use of the mark by others in products that are identical or similar. The mark may also be protected when used with dissimilar products or services, if that use is likely to cause confusion among consumers. However, if the mark is not actively used for a set period (five years in most jurisdictions), or if the holders make no effort to enforce their rights relating to the mark against infringers, the trademark may be rescinded for non-use. The trademark holder need not take action against all infringers if the holder perceives the infringement as minor, thus not worth the effort and expense to enforce. A revoked trademark may be re-registered and does not necessarily become public domain.[2]

Unlike patents and copyrights, trademarks can theoretically be enforced indefinitely. In the U.S., trademarks must be renewed every 10 years by filing a Section 9 Application for Renewal with the U.S. Patent and Trademark Office (USPTO). Also, trademark holders must file a Section 8 Affidavit of Continuous Use with the USPTO between the fifth and sixth years of the trademark's registration. Alternatively, the trademark holder may file a Section 15 Declaration of Incontestability.[3] 

The fair-use defense allows use of the mark to accurately describe the infringer's products or to identify the mark owner.[4]

A trademark protects the name of the software company, its products, and any "taglines" associated with the products. It also protects symbols, logos, and even the shape of a product.[5] Trademarks do not protect the software code itself. The simplest form of trademark protection is to place "TM" after the name. Registering a trademark with the USPTO allows the holder to place the ® symbol after the name and to establish legal presumption of ownership. The trademark registration fee ranges from $275 to $375, plus additional fees for amendments, extensions, and other purposes.[6]


b. Trademark requirements


[1] http://www.uspto.gov/trademarks/resources/index.jsp
[2] Ibid.
[3] http://www.uspto.gov/trademarks/law/index.jsp
[4] Ibid.
[5] http://www.bitlaw.com/trademark/index.html
[6] http://www.uspto.gov/trademarks/basics/BasicFacts.pdf