Intellectual propertyLaw and businessTrademark

What Is A Trademark, And Why You Should Care?

Trademarks are any symbols and/or words legally registered or established to represent a product, service, or company.  For businesses, a strong trademark is a powerful tool for creating a solid brand which stands out from other companies. But if you want to get the most out of your trademark, you will need to understand how it works to protect your business’ brand.

Trademark Defined

The first thing businesses should understand is that trademarks protect goods. They are sometimes called service marks when used to protect services (e.g. Google).  Trademarks help protect you by giving you the exclusive right to use a mark. This means that if your unique logo or tagline is trademarked, others can’t use it in the relevant jurisdiction and industry.

Types of Trademarks

There are three main categories of trademarks.

  • Symbols and Designs. Think of the McDonald’s “golden arches.”
  • Words and Slogans (groups of words). Think of Nike’s “Just do it.”
  • Tradedress.  Think of the Coca Cola bottle shape.

Your company isn’t required by law to register your trademark, you can gain some legal protections simply by using your trademark in the course of doing business but there are limitations to this approach.

Trademark Protections

First off, no business is required to officially register a trademark. But if you do register your trademark (which I usually strongly recommend, you will gain additional protections for your mark under the Lanham Act (the Federal trademark law).

  • Exclusive use of your trademark nationally.
  • Public notice that you own the trademark.
  • The right to use the ® symbol next to your mark which notifies the public that you have registered your mark.
  • The ability to file a federal lawsuit against anyone who infringes upon your trademark.
  • The ability to apply for trademark registration in foreign countries using the United States application as a pillar.
  • The right to register the mark at U.S. Customs to enforce seizure of counterfeit goods.

If your trademark is unregistered, you can still use the ™ symbol to notify the public that you have a common-law trademark and/or a trademark registered in a particular state. You won’t have the same level of protection as someone with a federally registered trademark but you still may be able to sue under the Lanham Act if someone infringes upon your mark. In summary, the Lanham Act provides protection for registered and unregistered marks but provides far more protection for registered marks.

Strong Trademarks

Besides registering your trademark, you can protect your brand by creating strong marks that are unique enough to make infringement easy to spot. The strongest marks you can create are called “fanciful” and “arbitrary.”

  • Fanciful marks are made up words with no dictionary or colloquially known meaning. (e.g. Exxon).
  • Arbitrary marks are words that have a dictionary meaning but that don’t have any direct correlation with the service you’re providing (e.g. Apple).

If your mark is not very unique, it may still get trademark protection if it has taken on a secondary meaning. For example, Nike’s “just do it” slogan was simply a phrase before it took on the secondary meaning associated with Nike’s products. Now it is a registered trademark.

For businesses that want to build and protect a strong brand (which is most businesses), Federal trademark filings along with brand management provide the best protection against infringement.

 

It is best to get legal guidance and have a trademark attorney perform a comprehensive search for you before you start registering a trademark. Schedule an initial consult with EmergeCounsel to speak with a trademark attorney here.