Guest Blog: By Cari B. Rincker, Rincker Law, PLLC
Brand recognition can be a valuable asset for beef cattle operations. Obtaining a registered trademark gives the owner enforcement rights against others who use confusingly similar marks in a particular class of goods or services. Cattlemen and women should consider taking this step towards protecting its intellectual property, which can oftentimes be an invaluable asset to a livestock operation.
Put simply, a trademark is the identifying mark of a beef cattle operation for consumers or other members of the agriculture community in connection with particular goods (e.g., beef, show cattle supplies) or services (e.g., consulting services, cattle photography). A trademark can take place in many forms including words (i.e., a standard character or stylized wordmark) (“Rincker Beef”) or a symbol/logo (i.e., a design mark).
A trademark can only be registered with the U.S. Patent and Trademark Office (“USPTO”) if the goods or services are used in interstate commerce (i.e., across state lines). If the livestock good or service is only used with intrastate commerce (i.e., within a state boundary) then a trademark may be sought for at the state level. For example, if you an Illinois cattle producer and out-of-state buyers have purchased calves at your annual production sale, then your beef operation has entered interstate commerce. Alternatively, if you are a beef blogger in Nebraska and sell advertisements on your blog to vendors throughout the country, then you are doing business in interstate commerce. If a beef cattle operation is not currently using the mark in interstate commerce but plans to use it in the future, then an “intent to use” trademark application can be filed.
Additionally, a trademark must be distinctive in order to be registered. The best trademarks are arbitrary or fanciful – such as Kraft® cheese, Aunt Jemima® or Nike® — and don’t have a separate meaning other than the brand of goods it represents. Suggestive marks include language regarding the goods or services provides, such as Agvance®, eSaleBarn®, or Breed Lautner®.
Marks that are considered “merely descriptive” are not typically registered unless distinctiveness can be gained over time (e.g., AgChat because it is used as a popular hashtag on Twitter among the agriculture community). Last names (surnames) are also considered descriptive. Descriptive brands (“Rincker Cattle Co.”) can be put on the USPTO’s secondary registry until the necessary distinctiveness is achieved; then, the mark will be put on the USPTO’s principal registry so long as the mark has been used exclusively, and continuously for 5 years. In such cases, the applicant can still use the ® mark and have certain trademark enforcement rights.
Generic marks can never be trademarked (“Farm” or “agriculture”). However, if a brand name or logo contains a generic term then a disclaimer can be used stating that no exclusive claim is made to that term (e.g., Software Solutions Integrated, LLC® with no exclusive claim to “Software Solutions” or “LLC”).
Importantly, a trademark or servicemark offers protection against “confusingly similar” marks within a certain class of goods or services. For example, if a cattle farm or ranch obtained a servicemark for “the breeding and sale of seedstock cattle” it would not have trademark protection if someone decided to use the mark for an agricultural magazine or a t-shirt. That said, each trademark class of goods and services has a separate filing fee. Beef cattle operations should
choose the number of classes that properly cover the goods and services offered to the public.
Although registration is not essential to trademark protection in the United States, if eligible, trademark registration with the USPTO greatly enhances legal protections to the trademark owner within a class of services or goods. Before registering a mark with the USPTO, a beef cattle operation can usually use the small ℠ (servicemark) or ™ (trademark) symbol to help protect the brand. Before doing so, the livestock farm should consult with an attorney. Once a farm has a registered trademark, it can use the ® symbol by the mark.
Once trademark registration is obtained, the work is not over. The farmer or rancher must renew the mark at 6 years, 10 years, and every decade thereafter showing the USPTO that the owner is still actively using the mark in interstate commerce. If these deadlines are not timely met, the applicant will need to reapply for the trademark. A good trademark lawyer will help calendar these deadlines to ensure that the client does not miss these important renewals; however, cattlemen and women should also pay attention to these deadlines. To help manage deadlines for multiple trademarks, livestock operations are encouraged to work with their lawyer and maintain a trademark spreadsheet to help organize important information relating to the trademarks, including renewal deadlines.
Once a farm has obtained a trademark on the principal registry, it may license use of the trademark to other persons for a monthly or annual fee. For example, Farmer Jane may come up with a great slogan or logo for agri-tourism and wish to license it out to those farms who wish to use that mark. The owner of the trademark may also sell or assign its trademark rights to another owner. A trademark assignment is an important (and sometimes forgotten step) with the sale of an agribusiness.
Beware of Trademark Infringement
Finally, before starting a business, it is prudent to run a search on the USPTO’s website to ensure that another person or entity has not already registered a confusingly similar mark. In certain cases, it is wise to hire a professional searcher to give a thorough report of similar trademarks filed at the state and federal level and other public records. Even if someone has not filed a trademark does not mean that they do not have trademark rights to protect their brand. Trademark registration gives the owner a rebuttable presumption in court that they were “first in time, first in right” to the use of the mark.
Before filing a trademark with the USPTO, beef cattle operations are advised to consult an agriculture attorney licensed in any U.S. jurisdiction. To file a trademark at the state level, a farm or ranch should work with an attorney licensed in that state.
For more information contact:
Cari B. Rincker
Rincker Law, PLLC
Licensed in New York, New Jersey, Connecticut and the District of Columbia
535 Fifth Avenue, 4th Floor
New York, NY 10017