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What is a trademark?

What is a trademark?

A very basic definition of the word “trademark,” courtesy of Black’s Law Dictionary, says that a trademark is “a word, phrase, logo, or other graphic symbol used by a manufacturer or seller to distinguish its product or products from those of others. The main purpose of a trademark is to designate the source of goods or services. In effect, the trademark is the commercial substitute for one’s signature. To receive federal protection, a trademark must be (1) distinctive rather than merely descriptive or generic; (2) affixed to a product that is actually sold in the marketplace; and (3) registered with theU.S.Patent and Trademark Office. In its broadest sense, the term trademark includes a service mark.”

While Black’s Law Dictionary provides some basic insight, statutory language provides additional information which is necessary for a more complete understanding of trademarks and trademark law. There are both federal and state statutes governing the law of trademarks, as well as common law doctrine on the subject. The premier federal authority on trademarks is the Trademark Act of 1946, also known as the Lanham Act. The definition provided by the Lanham Act says that “the term ‘trademark’ includes any word, name, symbol or device or any combination thereof –

(1)   used by a person, or

(2)   which a person has a bona fide intention to use in commerce and applies to register on the principal register established by this Act,

to identify and distinguish his or her goods, including a unique product, from those manufactured or sold by others and to indicate the source of the goods, even if that source is unknown.”

To provide a greater understanding of what a trademark actually is, it may be helpful to understand what a trademark is NOT, and to understand how a trademark differs from other types of intellectual property protection. Trademarks are words, phrases, symbols or designs which serve to identify and distinguish the source of the goods or services of one party from those of others. A trademark protects the identification of the source of the goods or services by allowing the seller to be the only one to reap the benefits from its presence in the marketplace. A copyright, on the other hand, is a form of protection provided by the laws of the United States(title 17, U. S. Code) to the authors of “original works of authorship,” including literary, dramatic, musical, artistic, and certain other intellectual works. This protection is available to both published and unpublished works. A patent serves to provide a person or company with exclusive rights for the making, using or selling of a concept or invention and serves to exclude others from also making, using or selling the same concept or invention.

A requirement that is tantamount to the effectiveness of a trademark is that it be distinctive, as distinctiveness allows the trademark to be identifiable in the marketplace. There are four classifications of trademarks which denote the overall distinctiveness of the mark, which are (1) arbitrary or fanciful; (2) suggestive; (3) descriptive; or (4) generic. A fanciful mark is made up entirely for the purpose of trademark protection. An arbitrary mark is word which is real, but which is not related to the product in any way, shape or form. A suggestive mark serves to describe the traits of a product or service in relation to how it is used, and requires a consumer to use his or her imagination in order to properly identify the product or service. A descriptive mark explains what the product actually is and describes a quality or the nature of the product. Finally, a generic term is the common name for the product or service in connection with which it is used. It simply tells what the product is.

The degree of distinctiveness of the trademark ultimately determines whether or not it is entitled to trademark protection. Fanciful and arbitrary marks are easily identifiable and are generally entitled to trademark protection. Suggestive marks also qualify for trademark protection. Descriptive marks are not entitled to protection at first, but a descriptive mark can, over time, become distinctive and entitled to trademark protection if the public begins to make associations between the mark and a particular source. Generic terms do not ever receive trademark protection, regardless of the efforts taken by a company in order to create a link, in the minds of consumers, between the product and the source.

Trademarks serve several functions in the marketplace. Most notably, trademarks serve to identify the origin of the goods. It is not required that the purchaser be able to specifically identify the source of the goods, as long the purchaser is able to recognize that all products which are affixed with a particular trademark come from a common source. Trademarks also serve to provide quality assurance. For example, when a consumer dines at a particular chain restaurant, the consumer expects that the product will be the same at each restaurant in that chain. A trademark protected with a trademark registration gives the trademark owner an incentive to provide a consistent level of quality to consumers, and causes consumers to expect it.

Once you have gone through the necessary procedures for registering your trademark, it is important to know for how long your trademark registration will be valid. Trademark registrations are effective for ten years after the registration date, and have renewal terms of ten years. As long as a trademark is continuously used in the marketplace and the owner makes the necessary filings, a trademark registration will remain valid and the associated product or service will be protected. The first filing must be made between the fifth and sixth years after the initial registration date, which is when a declaration of use and a specimen proving continued use in commerce must be filed. Another trademark renewal filing is required between the ninth and tenth years after the registration date, and then every ten years thereafter.

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