What Is a Trademark?

Most of us know at least a little bit about trademarks. They are logos, slogans, words, or designs that identify a business or its products or services. Common examples include Coca-Cola and Nike. In the case of the latter, both the word "Nike" and their trademark "swoosh" logo are trademarks, since they set Nike's products apart from those of competitors.

What Are Service Marks?

Trademarks are also called service marks when they are used to distinguish a specific service rather than a product. Trademarks help consumers decide what products to purchase by allowing them to recognize quality, reputation, and identity — factors known as goodwill. Names and symbols that designate familiar brands let shoppers know what they'll get for their money.

Not all business names and logos can receive trademark protection. Trademark ownership will expire if the mark in question is not used in commerce on an ongoing basis. In addition to symbols and words, product packaging and color can also be trademarked in some instances.

Trade Dress

The distinctive shape of a Coke bottle is one example of a design feature that can be trademarked because it's recognizable by consumers. These elements are known as trade dress and can only be trademarked if they are associated with a specific manufacturer rather than a product and do not have a functional purpose. 

Trademarks help shoppers find what they are looking for more quickly and entice manufacturers to invest in products since they can expect a certain level of quality. By the same token, dissatisfied customers can avoid the lacking brand in the future.

Trademark Law

The proper use of trademarks is governed by trademark law. These marks are categorized as either:

  • inherently distinctive 
  • not inherently distinctive.

Inherently Distinctive

Inherently distinctive marks are not directly related to or suggestive of the product or service they represent. In this category, they include:

  • Fanciful trademarks, which consist of made-up words like Verizon or Kodak. They are the strongest type of trademark since they are the least difficult to protect. 
  • Arbitrary marks, which use an existing word out of context. Amazon is a good example of an arbitrary mark. 
  • Suggestive marks, which refer to an aspect of the product in question in a subtle way. These unique marks also receive broad protection.

Not Inherently Distinctive.

The less distinctive the mark, the less protected it is against infringement. Descriptive marks are inherently not distinctive. This category includes:

  • trademarks that describe or name the goods and services they provide.
  • marks that include geographic descriptions. 

Though these marks may receive local trademark protection when they are used in commerce, they are not unique enough to receive federal trademark registration unless they have brand name recognition with consumers.

The categorization of trademarks as distinctive or not is a gray area of law that is often debated before the U.S. Patent and Trademark Office and in federal court. However, one hard and fast rule is that generic names, such as car, can never be trademarked or registered.

How Do You Acquire Rights in a Trademark?

Both the state and federal governments have laws that cover trademark protection. While states were first responsible for trademark protection, a federal trademark law was passed by Congress in the late 1800s. The Lanham Act, which is the primary federal trademark law, was passed in 1946 and updated 50 years later. While state trademark laws still exist, most trademark protection comes from federal statutes.

How Does a Trademark Acquire Protection?

A trademark receives protection even without registration as long as it is currently used in the marketplace. In general, the business or entity that can prove it used the mark first is considered the original trademark owner, as long as they have used it continuously. 

Before deciding on a name for your enterprise or investing in logo development and branding, make sure the desired trademark isn't already in use by somebody else. Your planned use for the name determines how you should do this search. Searching the state business name database will suffice if you simply need a trademarked name for official documents. Most trademarks, however, will be released publicly, so you'll need to do a more extensive search.

If you need help with trademarks, you can post your legal need on UpCounsel's marketplace. UpCounsel accepts only the top 5 percent of lawyers to its site. Lawyers on UpCounsel come from law schools such as Harvard Law and Yale Law and average 14 years of legal experience, including work with or on behalf of companies like Google, Stripe, and Twilio.