It is easy to become the owner of a trademark. You simply need to use the trademark in commerce in connection with a good or service. Most citizen media creators will probably use a trademark in connection with a service -- the service of providing online publishing or creating an interactive online community or the like. Once you've gotten this far, you "own" the trademark in the sense that you have the right to use it in commerce with the specific good or service in question and to exclude others from doing so, as long as your use is not confusingly similar to or dilutive of another individual's or company's prior use of the trademark. For that reason, it is critically important that you do an effective search of existing trademarks before you adopt one in connection with your online services. Please see our section on searching for the trademarks of others for details. For more information on how to acquire trademark rights, see Sarah Bird's excellent post, Trademark Basics: Be First in Your Market, Be Distinctive, and Don't Confuse the Consumer.
You may also choose to register your trademark, but you are not required to do so in order to bring a lawsuit to protect it against infringement or dilution. Registering a federal trademark puts the country (and possibly the world) on notice that you are using a certain mark, and also provides additional protections. However, this process is fairly long (usually taking a year or more) and potentially expensive (the fees start at $275). It is also possible to register a trademark with your state, which is likely to be cheaper and easier but is probably not the best option for online activities, which by definition have a national and international scope. However, if you would like to find out more about your state's registration process, you can contact your state authority responsible for trademark matters.
Benefits of Registration
As noted above, federal trademark registration is not required for you to protect your trademark. However, registration provides some advantages. Specifically, registering a trademark with the U.S. Patent and Trademark Office (USPTO) provides the following benefits:
Because federal registration is expensive, you'll want to weigh these benefits against the out-of-pocket costs of obtaining registration.
How to Register
You can apply for federal trademark registration online. The USPTO estimates that filling out the form should take about 15-20 minutes. A federal application must contain at least four things, in addition to the filing fee: your name, your address, a clear drawing of the mark (which can be automatically generated from text if you do not have a logo), and at least one category of goods or services in which the mark is or will be used. Alternatively, you can file a much more detailed application and receive a discount on the filing fee. You can choose more than one product, service, or industry for your trademark, but you must pay the filing fee for each one. The USPTO has predefined categories of products and services that they strongly suggest you use, but you can also type in something else if your product or service does not fit in its categories. You may want to consider filing for more than one category. If your business is not clearly confined to one area, doing so would give you flexibility to expand into new products or services in the future. On the other and, aside from the added filing fees, the downside to doing so is that you are more likely to conflict with someone else who is using the mark or a similar one in another field or industry. Furthermore, if you do expand in the future, you can apply for a new registration at that time (unless someone else has already registered the mark in that area in the meantime). If this process sounds too complicated for you, you can hire an attorney to do it. Trademark registration is usually fairly straightforward for attorneys who specialize in it, so it is relatively inexpensive.
After you file the registration forms with the USPTO, within about 3-6 months a USPTO attorney will examine and research your application. There are several categories of marks that the USPTO will refuse to register, including "immoral, deceptive, or scandalous" marks (such as those including foul language), those that disparage or falsely imply a connection to other people (the Washington Redskins are in danger of losing their trademark registration over this), and marks that are confusingly similar to others that are already registered. The USPTO attorney may contact you to resolve any issues in your application. If the USPTO approves your application, it will publish your trademark in its Official Gazette, and anyone who is already using the mark may oppose the registration. If no one opposes within thirty days, the USPTO will register your mark. All told, the process can easily take 1-2 years, but once it is approved your rights date back to the day you filed your application.
For additional details on registering a trademark, see the Chilling Effects FAQ on Trademark.
You can choose to include a trademark notice next to your trademark, but you are not required to do so in order to protect the mark. Trademark notice indicates to others that you claim ownership of the trademark in connection with the good or service in question, warning them against possible infringement. Any time you believe you have a rightful claim to a mark you may designate the mark with a ™ (for goods) or ℠ (for services). You do not have to register the mark to use these notices. In addition, if you choose to seek registration of a trademark, you can use these notices during the registration process. If you obtain federal registration, you will probably want to use the more powerful ® notice, which can only be used after a successful registration with the USPTO. Even then, you can only use the ® notice in connection with the goods or services listed in your registration application.
According to Chilling Effects "Trademark rights can last indefinitely if the trademark owner continues to use the mark to identify goods or services. . . The term of a federal trademark registration is 10 years, with 10-year renewal terms. However, between the fifth and sixth year after the date of initial registration, the registrant must file an affidavit setting forth certain information to keep the registration alive. If no affidavit is filed, the registration is canceled." In addition to renewing your registration (should you choose to register), you need to take some additional steps to make sure that you do not lose your trademark rights: