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February 21, 2017

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Trademarks and Service Marks

| 4/21/2016

A trademark or service mark is important to a business that is trying to protect a name, design, slogan or any combination thereof. It is used to identify and distinguish a party’s goods or services from any other’s providing or rendering the same goods or services in the marketplace. They can be considered one of the most important assets of a business since they are readily associated with a business’s reputation and goodwill.

“Trademark” is the term used to identify a mark which is being used in connection with a tangible product (i.e., shoes, soda, apparel, etc. )

A “service mark” is the term used to identify a mark that is being used in connection with a service (i.e., carpet cleaning, plumbing, auto repair, etc. )

Not all names, designs or slogans can be marked, however. The proposed mark must be unique and must contain some distinguishing feature or component that separates it from all the other names, designs or slogans currently being used by other individuals and/or businesses who are producing or selling the same product or rendering the same type of service. Florida trademark and service mark registrations are filed with the Florida Department of State and must follow all the statutory filing provisions of Chapter 495, Florida Statutes.

The owner of a mark may be an individual or a legally recognized business, so long as the business entity maintains an active registration on file with the Division of Corporations. A mark must be in use before it can be registered. In the case of a trademark, the good(s) or product(s) must be on sale in the marketplace. For a service mark, the applicant must actually be rendering the service for which a service mark is applied. The mere advertising of goods or services does not constitute use of a trade or service mark.

Section 495.021(1)(f), F.S., prohibits the Division from registering a mark if it consists of a mark previously used in Florida and not abandoned. The section also prohibits the Division from denying a mark registration based solely on the registration of a corporate name or fictitious name. It is the responsibility of the registering party, not the Department of State, to investigate the availability of a proposed mark, determine that the mark does not constitute infringement upon the mark of another, and defend it against infringement.

Specimens, Facsimiles, Examples
The purpose of specimens or facsimiles (examples) is to illustrate the manner in which the mark is actually affixed to or displayed in connection with the goods or services. Three specimens or facsimiles for each class of mark must be included with the application. Specimens or facsimiles must depict the mark as it is actually used. Do not submit typed or handwritten specimens or facsimiles unless the mark is actually depicted in that manner on the goods or products or in the case of a service mark, in advertising or promotional materials.

To apply for a trademark, submit specimens or facsimiles that are affixed to the good(s) or product(s). Some acceptable trademark specimens or facsimiles are labels, decals, tags, wrappers, boxes and containers. If your mark is a service mark, submit specimens or facsimiles that reflect the type of service(s) being provided. Some acceptable service mark specimens or facsimiles are business cards, brochures, fliers and newspaper advertisements. If your mark is both a trade and service mark, you must submit three appropriate trademark specimens or facsimiles and three appropriate service mark specimens or facsimiles. Three of the same item or three different items are acceptable. Be sure to send three specimens or facsimiles for each class for which application is made.

Do not submit camera-ready copies, letterhead stationery, envelopes, invoices or matchbooks. Photographs of bulky specimens are acceptable if the mark to be registered and the good(s) or product(s) are clearly legible. Specimens or facsimiles that are difficult to view or have been altered or defaced in any way are not acceptable.

Classes/Fees
Each product or service falls within one of 45 specific classes for registration. For information on classes and fees, visit Sunbiz.org.

To apply for a Florida trademark or service mark, mail one original and one photocopy of an Application for the Registration of a Trademark or Service Mark, three specimens or facsimiles (examples) of the mark and a check payable to the Florida Department of State for the appropriate amount.

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