1. What Is the Difference Between Common Law and Registered Trademarks?
2. Do the Food Trademarks Only Apply to Names and Logos?

Food trademarks distinguish and identify edible products of one maker from those of another one. They can be in the form of any design, name, symbol, or a combination of these. You may also hear trademarks get called by the following terms:

  • Brands
  • Logos
  • Marks

When a mark identifies a service as opposed to a product, it becomes a service mark. An example of this would be "Shake Shack," which has a trademark to designate its fast food products and a service mark denoting the fast-food service of the restaurant. 

Sometimes, a brand name becomes inseparable from a product, and that is when trademark erosion occurs. A product and brand become genericized when they are indistinguishable from one another, which makes registering it no longer possible. While becoming a household name may seem desirable on the surface, many companies try to prevent genericizing from taking place. 

Manufacturers trademark products that come on the market to minimize the risks of another business using the name without authorization. That is known as trademark infringement. Such is the case when you come across knockoffs of famous brands like Fendi purses and Rolex watches. 

To put trademark infringement into perspective, take adhesive bandages for example. It would not be unlawful if you were to call a non-Band-Aid brand bandage a Band-Aid, but the company of the off-brand bandage could not name its own product Band-Aid.

What Is the Difference Between Common Law and Registered Trademarks?

Common law trademarks get designated with the TM symbol, or SM symbol for a service mark. In the United States, anybody may attach the symbols to their logo. Also in the U.S., a trademark does not have to be a registered mark to exist in establishing an infringement action. 

Shake Shack has a registered trademark that protects its burger symbol and name. However, there is no registration for the graphic design that appears on the cups for their shakes. If no one used the same graphic before they did, then the logo likely has a common law trademark, which would make Shake Shack's ownership of the graphic valid as all common law trademarks get determined by first use. 

As it stands, the first person to use a brand receives priority when competing for the mark's ownership. Protecting a trademark only applies in the geographic location where it gets an acknowledgment or is in use. In a majority of circumstances, the ® symbol gets attached to a mark once it has gotten approval from the U.S. Patent and Trademark Office (USPTO).

It is not impossible, but it is more difficult for someone to be successful in claiming the infringement of a logo or otherwise challenge a mark after it gets registered. To have the rights of supreme ownership, one must show evidence of being the first to use the trademark. After five years of having trademarking rights, no one can contest a registered mark's national protection. An example of this would be the restaurateur and New York chef, Tom Colicchio, who has kept restaurants throughout the United States from using the term "Craft."

Do the Food Trademarks Only Apply to Names and Logos?

Trademarking a food product also means sometimes registering the brand for the food's shape. The creators of the chocolate bar KitKat trademarked the three dimensional and four-fingered form of their famous candy. 

Nestle made its first KitKat in 1935, and since pursuing efforts to register the trademark in 2006, the company has had to deal with setbacks brought forth by their candy rival, Cadbury. The actions of Nestle's candy competitor held up attempts by Nestle to protect their chocolate's signature shape. That ended not too long ago when at last Nestle got the snack trademarked in 2013.

Another well-known edible trademark is the "plume," which comes out of the foil-wrapped Hershey's Kiss that was registered along with the Kiss name in 1924 by Milton S. Hershey. He also had patents for other inventions, such as the "Candy Holder" and "Machine for Cutting Candy." However, they did not meet the same public enthusiasm or achieve the level of popularity as the many other well-known products of Mr. Hershey.

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