A trademark is any name, device, symbol or sign used by a legal entity, business or individual for commerce to distinguish and identify the goods of one seller or manufacturer from another. The trademark helps the buyer identify the source or seller of the goods. Trademark protection can be extended to the packaging, designs and style of the product. Service marks are used to protect the services of a company and are afforded the same legal protection as a trademark. Common trademarks include the UPS brown and the Nike Swoosh. Trademarks can be registered with the United States Patent and Trademark Office.
Trademark infringement is the use of a registered trademark without an authorization from the trademark owner. If you have a trademark which has been illegally used you can speak with a trademark attorney who can help you file a trademark infringement claim.
Trademark law is part of the legal field of intellectual property law. Intellectual property includes artistic, literary and musical creations as well as other creative symbols used in commerce. Intellectual property laws give the originator of the creation exclusive rights to market, sell and distribute their creation. Copyrights, patents and trademarks are included under intellectual property law.
Using a trademark in a specific geographic area will give the seller certain rights under common law. If a trademark is used in state to state commerce the trademark can be registered with the U.S. Patent and Trademark Office. Federal registration will give the trademark owner nation-wide protection. If a trademark is used with in a state, state registration is available but all rights granted to the trademark are valid only in the state where the trademark is registered. In certain cases, other companies may also use the trademark if the selling and distribution of their product does not geographically overlap with another product. Unlike patents and copyrights, trademark protection does not expire as long as the trademark is used.
Trademark laws were created to prohibit sellers from using the trademark of another company which could confuse customers and could allow certain companies to benefit from the first seller’s investment of energy to create good will. Trademark infringement occurs if a trademark is used illegally.
Trademark departments were created by the 1870s in England and the United States to help customers determine if a good was counterfeit. Trademark law is generally enforced in the United States through private trademark infringement lawsuits. This differs from copyright laws which have stiffer criminal penalties for copyright violations. If a trademark owner feels their trademark logo has been infringed, it is up to the owner to file a state or federal trademark civil suit to stop the trademark infringement.
Trademark infringement law generally focuses on the potential for confusion in the mind of the customer. Over the course of time, courts have outlined many factors that they evaluate in trademark infringement cases including the marketing channels, the types of products, the similarity in appearance and sounds of the trademarks, the geographical location of the products, and the strength of the trademark.
Trademark infringement can also occur through trademark dilution. Trademark dilution was first enforced in the United States in the1990s through trademark laws. Trademark dilution refers to using a company’s trademark in separate markets to sell non-competing goods. The courts argue that the unauthorized use of the trademark could cause the trademark to lose its distinguishing properties in the mind of the public.
If your business is in the process of developing and registering a trademark it is important to consider the type of trademark you would like to create. The courts are more likely to protect a trademark which is arbitrary or fanciful and will be less likely to describe other competing products. Four basic categories have been created for trademarks: arbitrary or fanciful, descriptive, generic and suggestive.
Arbitrary or Fanciful – is a trademark that does not bear any relationship to the product. Most arbitrary trademarks are common English words. An example is the Apple computer. Apple is a common word which now is associated not only with a piece of fruit, but a type of computer. Fanciful trademarks are often words that were developed only with the creation of a specific product. An example would be Exxon or Oreo. These trademarks are strongly protected.
Descriptive – Descriptive trademarks are not as strongly protected as arbitrary trademarks because they can identify other types of goods and services. The descriptive trademark is not inherently distinctive and may only benefit the good or service if it begins to have a secondary meaning in the mind of the consumer.
Generic – Generic trademarks are words that begin to become so closely associated with a type of product they begin to lose trademark status. Certain words which have already lost their status include super glue and thermos. Other words such as Ziploc, Q-tips and Kleenex are close to losing their trademark status.
Suggestive – Suggestive trademarks are words that describe certain aspects of a given product, but do not specifically identify the product. Suggestive trademarks are generally protected because the consumer must imagine and identify the product.
A trademark attorney who is familiar with trademark law or intellectual property law can help individuals or businesses who have questions regarding trademark infringement. Trademark lawyers are also experts in registering new trademarks, completing trademark applications, and resolving trademark oppositions. Trademark lawyers also have expertise in working with the U.S. Governments Patent and Trademark Office to resolve issues.
Trademark attorneys can also help if another business is illegally using your trademark and can work to stop the illegal use and if necessary file a trademark lawsuit claim. It is important to select an attorney who has expert knowledge in the area of trademark law and has passed the necessary tests and requirements to practice intellectual property law in their state.