A trademark is a symbol that serves to notify a consumer of the source of a product, service, trade organization, or certification authority. Such marks are technically referred to, respectively, as trademarks, service marks, collective marks, and certification marks. However, trademark and mark are used to refer to all types of marks generally.
There are few limits on what can serve as a mark; for example, words, logos, slogan, letter, number, sound, color, or perhaps even a smell as long as it serves to identify source to consumers. Rights in a particular mark arise from use of the mark in commerce. Accordingly, a company that made extensive use of a slogan has rights in that slogan even if the company has not registered the slogan. However, registration provides certain significant advantages as discussed herein.
The underlying purpose of trademark law is to prevent consumer confusion; i.e., if a mechanic buys a set of tools that are labeled “Craftsman,” those tools should be genuine Craftsman product, and not a knockoff. Accordingly, to serve this underlying purpose, a trademark must be distinctive – an identifier that is generic or merely descriptive will generally not qualify as a trademark. Certain words or phrases are presumed to lack distinctiveness – for example, geographical locations, surnames, nonsensical words or combinations of letters and numbers, and very short marks are presumed to lack distinctiveness in certain countries. However, none of these are per se bars to obtaining a mark – even if a mark encompasses one or more of these traits, protection may still be obtainable.
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