What is a trademark? While everyone seems to have a general idea of a trademark, the truth about trademarks may be different from the mental image most people have.
A trademark is a form of mark governed by the United States Patent and Trademark Office (USPTO).
On the simplest level, a trademark is a formal registration of a mark used to identify goods. A trademark can be a symbol, name, short phrase or combination of the above. A trademark is only one type of mark; you could have a service mark, or even another type of mark, depending on your product. Trademarks apply only to goods; service marks are for intangible services that one person or company renders to another. You must register a trademark with the USPTO, and not everything qualifies for registration.
You can use a mark to differentiate your goods and services.
The purpose of a trademark is to differentiate your goods or services from someone else's goods or services. A trademark is a commercial marketing protection; it doesn't actually protect the goods or services themselves, but only the identifying mark. For example, Nike has trademarked the phrase "Just Do It," along with the Nike name and the Nike swoosh symbol. Anyone can attempt to sell athletic sneakers, but if anyone other than Nike attempts to use that name, symbol or slogan, it could constitute trademark infringement, and could warrant legal action in court.
Different types of marks warrant different degrees of protection.
Trademarks falls into four categories: an arbitrary mark, a suggestive mark, a descriptive mark or a generic mark. Arbitrary marks are completely unrelated to the product they promote and are associated with a specific manufacturer or producer. Arbitrary or fanciful marks warrant a high degree of protection, because they're unique and easily identifiable with specific brands. Suggestive marks are somewhat related to the underlying product, but they require a degree of interpretation or imagination to relate them to the product. Like arbitrary marks, suggestive marks are highly protected.
Descriptive marks describe the products they promote. Depending on the product, descriptive marks may be more difficult to protect because conferring protection may cause problems for other manufacturers. Generic marks describe a category of products. Generic marks don't warrant individual protection, because they don't promote a specific brand; they're too general to qualify for protection. It is possible for marks to become generic over time as their use enters the common lexicon to describe a group of products, instead of a specific manufacturer.
Trademark law can be highly complex.
While it's possible to find plenty of information and register a trademark online, trademark law can be highly complex. If you're beginning a business venture and want to protect your mark, or if you are worried that you're using a mark that may already be protected, don't hesitate to contact a trademark lawyer to learn about your rights. It would be highly inconvenient to register for a mark and find out you can't use it to protect your products or find out that you've submitted an incomplete trademark registration. Consulting a trademark lawyer can help you avoid these hassles and ensure you're protected from trademark infringement.
What is the difference between a copyright and a trademark? Both confer legal protection, but the similarities end there. Do your circumstances warrant a copyright or a trademark, or neither?
Learn how to register a trademark so you can protect the brand identity of your small business.
This article contains valuable information about Trademarking and how to obtain more information. It also deals deeply with the common law trademark by explaining its need in order to create profit in business.