Trademarks
I. What is a trademark?
A trademark is any symbol, including a word, a design, or a slogan, that is used to identify and distinguish one company’s goods from the goods of others. A symbol used to identify and distinguish a company’s services is a service mark. A trademark or a service mark gives its owner the right to exclusive use of the mark to identify and distinguish its goods or services throughout the area in which the trademark owner has developed trademark rights. The trademark owner can preclude others from using a mark in a manner likely to cause confusion among consumers.
II. How can a trademark be valuable?
Trademarks and service marks allow consumers to pick out particular goods or services from among many competing goods or services in the marketplace. Trademark identification is often the primary factor in motivating a purchaser to choose one product over another. Additionally, the exclusionary rights that a mark provides enables a trademark owner to protect the market that it has developed for its particular goods or services.
III. What types of things can be trademarks?
Trademarks, or services marks, can consist of words or slogans, designs, a number or other symbol, a shape, or a combination of any of these things. Virtually anything that can identify and distinguish the particular goods or services with which it is used from competing goods or services can be a trademark or service mark.
IV. How are trademarks obtained?
All trademark rights arise from use of the mark. Proper use of an available trademark to identify and distinguish one’s goods or services from competing goods or services can create common law trademark rights. The symbol â„¢ may be used with the mark to indicate the claim of trademark rights. Trademarks may be registered on the state and federal levels and such registrations provide significant advantages and generally maximize the value of the trademark. Although all trademark rights ultimately require use, the first step in developing trademark rights should be to conduct a trademark search to ensure that the mark is available and is not already being used. Trademark searching, or clearing, is particularly important before funds are expended for advertising, packaging, or labeling. All of these funds could be wasted if a prior owner of the mark exists and has a right to exclude your use. Application for registration can also be based on a bona fide intent to use the mark prior to actual use. Federal trademark registrations are good for an initial ten years, if an affidavit of continued use is filed at the 5 year point, and are renewable for ten year periods thereafter.
V. What types of things cannot serve as trademarks?
Generic terms for a good or service can never be trademarks for the goods or services to which they apply because such terms cannot identify and distinguish the particular goods or service from competing goods or services. Descriptive terms, primarily geographical terms, merely ornamental designs or features, and personal names also cannot immediately function as a trademark or service mark.
