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Trademark: Supplemental Register

Primary Trademark vs. Supplemental Trademark

The strongest U.S. Trademark registration is on the "Primary Register". A trademark such as, "STINGRAY" capable of the such a registration because the name does not describe the goods, in this case, a tent (U.S. Reg. No. 5,165,125). However, should your trademark be descriptive - that is, describe an aspect of the product or services you are selling, then the registration must go on the "Supplemental Register".

On the other hand, a trademark such as "DRY MISO" is registered on the Supplemental Register because the goods sold are for a condiment made from miso (U.S. Reg. No. 3,659,587). Once a trademark is in use for five years, in many cases the trademark is said to have acquired a life of its own that people will recognize as a district brand. This is called "secondary meaning". In such a case, the trademark can be now be registered on the Primary Register.

Difference in Damages

So what is the difference? The difference is in damages. With a Primary Register trademark you can seek higher damages including attorney fees and between $1000 and $200,000 for many types of infringement. (See 15 USC § 1117 of the United States code). A Supplemental Register trademark won't allowed you to recover attorneys fees or the higher "statutory" damages. You can typically recover only what you can prove you lost through the infringement or what the other party gained.

Another consideration is that Amazon will rarely honor a trademark registration on the Primary Register, however, Amazon typically gives no credence to a Supplemental Register trademark. Still, the registration is a deterrent against others using your trademark and also prevents another from trademarking your brand.

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