**The following is not legal advice. It is for general informational purposes only and should not be relied upon. It contains some generalizations and may not be regularly updated. Facts and situations vary widely. Upon understanding your specific situation a qualified attorney may advise as to your rights and obligations.**
What is a trademark or service mark?
A trademark is a word, phrase, symbol or design, or a combination of words, phrases, symbols or designs, that identifies and distinguishes the source of the goods in the stream of commerce from the goods of others.
A service mark is the same as a trademark, except that it identifies and distinguishes the source of a service rather than a product.
Do trademarks, copyrights and patents protect the same things?
No. Trademarks, copyrights and patents all differ. A copyright protects an original artistic or literary work. A patent protects an invention. A trademark protects brand identification.
Basis for filing:
The application should include your "basis" for filing. Most U.S. applicants base their application on their current use of the mark in commerce, or their intent to use their mark in commerce in the future. Some marks are based on foreign registrations or use.
What is "use in commerce"?
For the purpose of obtaining federal registration, "commerce" means all commerce that the U.S. Congress may lawfully regulate; for example, interstate commerce or commerce between the U.S. and another country. "Use in commerce" must be a bona fide use of the mark in the ordinary course of trade, and not use simply made to reserve rights in the mark. Generally, acceptable use is as follows:
For goods: the mark must appear on the goods, the container for the goods, or displays associated with the goods, and the goods must be sold or transported in commerce.
For services: the mark must be used or displayed in the sale or advertising of the services, and the services must be rendered in commerce.
If you have already started using the mark in commerce, you may file based on that use. An "in use" application must include an indication of the date of first use of the mark anywhere and the date of first use of the mark in commerce. The application should include a specimen showing use of the mark in commerce.
What is "intent to use"?
If you have not yet used the mark, but plan to do so in the future, you may file based on a good faith or bona fide intention to use the mark in commerce. You do not have to use the mark before you file your application.
An "intent to use" application requires that you have a bona fide intention to use the mark in commerce. This is typically done where the trademark owner wants to allow the application to be examined by the USPTO before committing to a mark by printing packaging, advertising, etcetera.
NOTE: If you file based on intent to use, you must begin actual use of the mark in commerce before the USPTO will register the mark; that is, after filing an application based on "intent to use," you must later file another form ("Allegation of Use") to establish that use has begun.