What Is a Trademark?

A trademark is an identifiable phrase, word, symbol, or insignia that designates a particular product and legally sets it apart from all other items of the same sort.

A trademark acknowledges the ownership of the brand by that firm and uniquely distinguishes a product as its own. Registering or not registering a trademark does not always make it an intellectual property.

A trademark is a word, symbol, or phrase that designates and sets apart a certain manufacturer’s or seller’s goods from those of other companies. 15 U.S.C. § 1127.
For instance, the trademark and the “swoosh” logo serve to identify and set apart Nike footwear from footwear produced by other brands (such as Adidas or Reebok). Coca-Cola is a trademark that sets one manufacturer’s brown-colored soda water apart from another manufacturer’s brown-colored soda (like Pepsi).

Trademark Law

Although they are often considered the same as trademarks, these marks are referred to as service marks when they are used to designate services (e.g., “Jiffy Lube”) rather than products.

In certain situations, trademark protection might encompass elements of a trademark in addition to words, symbols, and phrases.product, such as the package or color. Examples of distinguishing characteristics may be the distinctive shape of a Coca-Cola bottle or the pink tint of Owens-Corning fiberglass insulation.

These characteristics are typically referred to as “trade dress,” and they could be protected if buyers identify that particular element more with a certain maker than the goods as a whole. However, if these qualities offer any kind of competitive or functional benefit, they won’t be protected.

Thus, for instance, a manufacturer cannot restrict the use of a specific unique bottle shape if it has a practical advantage (e.g., makes the bottle easier to handle or stack). Jacobson v. Qualitex Co.

What sources of law govern trademarks?

State and federal laws both regulate trademarks. At first, the primary basis for trademark protection was state common law. Nonetheless, the United States Congress passed the first federal trademark statute in the late 1800s.

Ever since, state common law has gradually given way to federal trademark law, which now covers a large portion of the original territory. Enacted in 1946 and most recently revised in 1996, the Lanham Act is the primary federal legislation. Section 1051, et seq., 15 U.S.C.

While state common law lawsuits remain available, federal law serves as the primary and most comprehensive source of trademark protection in the modern era. The majority of this summary’s topic is devoted to federal law.

What prerequisites must a mark satisfy in order to serve as a trademark?

A mark needs to be unique in order to function as a trademark; that is, it needs to be able to pinpoint the origin of a certain good. Based on the connection between a mark and the underlying goods, the courts classify marks into four categories to determine whether they are distinctive:

arbitrary or whimsical; suggestive; descriptive; or generic. Because each of these categories includes marks that differ in terms of uniqueness, a trademark’s eligibility for and level of legal protection will depend on which group it belongs in.

An arbitrary or fantastical mark is one that makes no sense with respect to the object it represents. For instance, there is no intrinsic connection between the terms “Apple,” “Kodak,” and “Exxon.” and their base goods (be it computers, cameras, or fuel, respectively).

Likewise, there is no intrinsic connection between the Nike “swoosh” and sports footwear. Because they are intrinsically unique or able to identify an underlying product, arbitrary or fantastical marks enjoy a great deal of protection.

Any mark that alluded to or implied a quality of the underlying good is considered suggestive. For instance, the term “coppertone” does not expressly define the underlying product, but it does allude to sun-tan lotion. It takes some creative thinking to connect the term to the underlying product.

However, the term and the underlying product are not entirely unconnected. Similar to arbitrary or fantastical markings, suggestive marks are protected to a great extent because they are naturally unique.

A descriptive mark is one that gives a clear description of an attribute or feature of the underlying product—such as its color, odor, function, size, or ingredients—instead of implying anything about it. As an illustration, the terms “Holiday Inn,” “All Bran,” and “Vision Center” each refer to a different feature of the underlying good or service (hotel rooms, cereal for breakfast, and optical services, respectively).

They provided us with some product information. Descriptive markings are not intrinsically unique, in contrast to arbitrary or suggestive marks, and they are only protected if they have developed a “secondary meaning.” The reason descriptive marks need to pass this extra level of scrutiny is because they are phrases that are helpful in characterizing the underlying goods, and granting a certain manufacturer the sole right to use the term might give them an unfair advantage.

A descriptive mark takes on additional significance when, more than the actual goods, the consumer base identifies that mark with a certain company. Because the general public equates the name “Holiday Inn” with a specific hotel service provider rather than with hotel services in general, it has taken on a secondary connotation.

The public just needs to know that a single producer is the source of the good or service—they don’t need to know who that producer is. Courts frequently consider the following considerations when determining whether a phrase has gained secondary meaning: the volume and style of advertising; the number of sales; the duration and style of the term’s usage; and the findings of consumer surveys. Oak Grove Smokehouse, Inc. v. Zatarain’s, Inc., 698 F.2

Lastly, a generic mark is a mark that identifies the broad category that the goods in question fall within. For instance, “computer” refers to computer equipment generally. Trademark law does not grant any protection to generic marks.

Therefore, a producer of computers under the “Computer” brand (or apples under the “Apple” brand, etc.) would not be the only one to use that name in relation to that product. The reason behind the lack of trademark protection for generic phrases is that they are too helpful in identifying specific products. Controlling the term’s use would give a single manufacturer an unfair edge over competitors.

Terms that aren’t initially generic may eventually become generic (a process known as “genericity”) and, as a result, become exposed.

Understanding Trademarks

Brands serve a crucial role in helping customers differentiate items, in addition to being useful in the legal and commercial spheres. They serve to identify and safeguard terms and design components that indicate the creator, owner, or source of a good or service.

These might be band names, company logos, slogans, or product brands. In common usage, the term “trademark” refers to both trademarks and service marks, as they both identify and differentiate the provider of a service as opposed to a product.

By registering a trademark, a business or individual can stop other parties from utilizing their goods or services without authorization. Additionally, they forbid any markings that may be mistaken for already-existing ones. Consequently, a business cannot use a symbol or brand name if it resembles one that already exists in writing, whether it be for a comparable product or service or if it sounds or looks similar.

For example, a soft drink firm cannot lawfully use a name that sounds like Coke or a sign that resembles Coca-Cola.

Special Considerations

It is possible to buy and sell trademarks. Another way to create crossover brands is to license trademarks to other businesses for a predetermined period of time or under specific terms. Consider the connection LEGO has with specific film series. The private firm creates LEGO copies of well-known items by licensing a number of well-known sub-brands, including DC Comics and Star Wars.

As previously said, trademarks are a useful tool for brand name marketing. Indeed, the use of trademarks in marketing is legendary, and the power of branding in business is vital and can fill volumes.

Some companies, like Kleenex, have become so well-known and have such strong brand identities that they have nearly completely replaced the noun that originally served as the anything or service, such as requesting a Kleenex rather than a tissue.

The owner of the Kleenex trademark is Kimberly Clark (KMB), who introduced the brand in 1924 as a disposable tissue for makeup removal. The corporation reintroduced the trademark in 1930, this time to replace handkerchiefs. Ever since, Kleenex has maintained its position as the world’s best-selling face tissue.5.

In a similar vein, we are more likely to request a band-aid than a “self-adhesive bandage with sterile cotton lining.” As early as 1887, the multinational corporation Johnson & Johnson (JNJ) started producing sterile gauze bandages.

However, the business didn’t introduce its BAND-AID brand adhesive bandage until 1920. Earle Dickson, a cotton salesman for Johnson & Johnson, created the band-aid.

Trademark vs. Patent vs. Copyright

Copyrights and patents are not the same as trademarks. A patent gives the owner of a piece of property the rights to use the design, method, and invention. Upon registration, the inventor is required to fully disclose the invention through the USPTO, including both the design and the procedure.

This grants the creator complete protection over the contested item or service for a predetermined amount of time, generally 20 years.

After the patent expires, anybody can exploit the idea by manufacturing, promoting, and selling it.8 In the pharmaceutical sector, this is typical.

When a pharmaceutical firm files for a patent, it grants other businesses the exclusive right to market and sell the drug’s generic versions to consumers for a predetermined amount of time.9.

Copyrights, however, on the other hand, allow the lawful copying of intellectual property by its owners.10 For a limited time—typically until 70 years after their passing—copyright holders and those with the appropriate permission may solely duplicate the related work for profit.

Examples of works protected by copyrights include software, artwork, music, movies, and designs. But they don’t cover logos, slogans, or brand names. The filer must submit an application to the U.S. Copyright Office in order to get a copyright and avoid copyright infringement.

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