A trademark is a unique or distinctive sign of origin or authenticity that identifies a product or service as coming from a specific manufacturer or service provider. The trademark allows the product or services to be distinguished from those of a competitor. It might also be called a service mark.
What Makes a Trademark?
A trademark can be a brand name. Included as trademarks by the U.S. Patent and Trademark Office are words, names, symbols or any combination of them that are intended to distinguish and indicate the source of certain goods and services from those of competitors. Think of a Campbell’s Soup label. The specific cursive writing of the name of the maker of the product with the red background operates as a trademark. We don’t have to pick the can up and read the fine print on the back to know that it’s Campbell’s Soup. Think of the Nike “swoosh” on a pair of shoes or a shirt. That’s a trademark too. Trademarks are acquired by using them, not by registering them, but registering a trademark enhances the owner’s rights.
What Trademarks Are Used For
Trademarks are used to claim, protect or enforce specific proprietary rights of goods and services. Trademarks can have tremendous monetary value because of the products or services that stand behind them. Apple has the world’s most valuable trademark. Google and Coca Cola are right behind it. Products of all of these businesses are identified by their trademarks in highly specific manners. By identifying these products and services through their trademarks there is no likelihood of confusing them with those of competitors.
Trademarks vs. Copyrights
A trademark is an insignia, stamp or symbol that specifically identifies where certain goods or services originated from. Copyrights provide an entirely different form of protection that’s focused on original creative works like literary works, music, theater, paintings, sculptures or even dance and pantomimes. A copyright doesn’t protect the name or title of a creative work, nor does it protect any symbols or logos one might use to promote the work. It protects the creative work itself. Like a trademark, a copyright isn’t required to be registered either, but registration enhances the copyright owner’s rights.
How Trademarks Are Protected
If a person or entity owns a trademark, they’re permitted to sue an infringer. Infringement is caused when a likelihood of confusion has arisen as to the source of the goods or services. Courts will look at a variety of factors in an infringement suit to determine whether a likelihood of confusion has arisen. Those include but aren’t limited to the strength of a trademark, the similarity of the marks and the alleged infringer’s intent. Products or services that can amicably exist with each other involve completely dissimilar products like Apple Computers and Apple Records.
Notwithstanding the fact that registration of a trademark isn’t required for protection, registration does avail the owner to specific legal benefits. It provides constructive notice to all of the United States of ownership of the trademark. After five years, the trademark becomes incontestable so long as it’s properly maintained. Trademarking permits an infringement action to be brought in federal court where treble damages, attorneys fees and costs can be awarded.