TRADEMARKS OVERVIEW

What are Trademarks?

Trademarks are known as source identifiers, which are basically what people see and associate with your product, services, and company. Your trademark can include anything from a word, a name, a logo, and/or device that is intended to make you stand out from other competitors in your niche.

Typically, trademarks include a variety of the following:

A Design: An example would be an apple with a bite taken out of it for Apple products like iPhones, iMacs, etc.
A Slogan: This is your business’s catchphrase or tagline. An example would be Nike’s ‘Just Do It’.
A Shape: The shape of your product can be trademarked. For example, Coca-cola has a patent on the unique shape of the glass bottle it is served in.
A Sound: Yes, even a sound can be trademarked. A good example is the ding you hear when NBC news comes on broadcast.
A Color or Smell: Tiffany’s uses a specific and recognizable color of teal. Perfume companies have specific perfume scents. Both examples have trademarks on them.

A trademark is most frequently recognized as a symbol, ™, that serves to notify a consumer of the source of a product, service, trade organization, or certification authority. But they can also be seen as other letters as well. 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.

Purpose of Trademarks

The underlying purpose of trademark law is to prevent consumer confusion; i.e., if a person buys a guitar or guitar part that is labeled “Gibson,” that guitar or part should be genuine Gibson product, and not a knockoff.

Types of Trademarks

As the primary purpose of a trademark is to distinguish the goods and services of one source from another, a mark must serve that function to actually be a trademark. The quality of identifying the source of products or services is referred to as “distinctiveness;” a mark must be distinctive to function as a trademark.

Distinctiveness is often described as a spectrum, ranging from “fanciful” marks to “generic” marks. Certain marks are naturally distinctive, and can function as an identifier of source immediately on use. Other marks need time and commercial activity to become associated with the goods or services of an entity prior to becoming distinctive.

Learn more about these and other definitions of trademark distinctiveness here.

Trademark Registration

Trademarks are granted federally by the US Patent and Trademark Office and the protection extends from the federal to the state level as well. When a trademark is granted, the owner has the exclusive rights to its use and can prevent anyone else from stealing it.

You may choose to not apply to trademark your business name, however you should at least search the USPTO database to be sure nobody else has filed a trademark for the same business name.

See our page devoted to trademarking a business name here.

One benefit of a trademark registration is that it gives its owner the ability to file a lawsuit regarding the mark in federal court. Another key benefit is that it provides the ability to file for U.S. registration along with U.S. Customs Service in order to prevent import of foreign goods that are counterfeits of your product. Finally, a U.S. Registration allows registration in foreign countries through the Madrid Protocol.