Section 1, a trademark could be a design, picture, logo, emblem, wording, or a combination of all the aforementioned things, which becomes attached to products for the sake of identifying them and their manufacturers or their commercial origins. Plain words without specific kinds of lettering, only naming the manufacturer, or using a generic product name are not considered trademarks. Trademarks use uniqueness to make it possible for people to recognize them and identify a product or service because they stand out from others.

A trademark could exist for its initial use, but still, you need to register it with the USPTO (United States Patent and Trademark Office) to prove you have ownership and the right to use it. Under the jurisdiction of Federal Law, trademarks will last as long as they are being used and there are also updated re-registrations to keep them current, so it's vital to your products or services that your trademark is updated. Trademarks can be just as valuable as the product or service it represents.

Types of Nontraditional Trademarks Registered in the United States

The USPTO takes applications for the registration of trademarks that are traditional in appearance consisting of words, design, and a combination of those things. The USPTO also registers trademarks that aren't so traditional with nonvisual traits such as color, sound, shape/configuration, flavor, scent, touch, motion, certification marks, and collective marks.

These are different types of nontraditional trademarks that are registered with some guidelines for their acceptance by the USPTO:

  • Word Mark—customary drawings of characters—all characters consisting of letters and words have a composition of Latin characters; numbers are Arabic or Roman in nature and can have punctuation or diacritical symbols.
  • Design Mark—stylized wording and design—the image submission needs to be in the .jpg format, with the resolution of at least 300 to 350 dots per inch, and the length and width need to be 250 and 944 pixels. The image must have defined lines that are sharp and solid, to create a superior image when reproduced.
  • Color Mark—where one or more colors used as the trademark identify the product or services of commercial origin, so solid proof of the color's/colors' uniqueness needs presentation when applying for the trademark. Color mark trademark applications need to have a color claim that includes the name of the color, how it appears, and how it's used in the trademark.
  • Shape Mark (three-dimensional)—for the configuration consisting of shape for product design, or product packaging, so a mark description must be available showing the three-dimensional shape using a drawing at all angles.
  • Sound Mark—an audio file using electronic formats such as .wmv, .wav, .wma, .mpg, .mp3, or .avi and not exceeding 5 B in size, must be available for submission including a sound description which may also contain words or lyrics.
  • Flavor or Scent Mark—the submission must contain strong proof of the distinctiveness of the flavor or scent, with a written description and a sample of the flavor or scent that corresponds to the mandatory description.
  • Touch Mark—must be represented graphically at submission.
  • Motion Mark—if a motion is being trademarked, such as a repetitive motion, for a short period of time, a drawing that represents either one moment in the movement or depicting up to five freeze frames of consecutive points in the movement, has to be available for submission along with a specific account of the motion.
  • Collective Membership Mark—the intention of the mark is for use by the members of an association, cooperative, or other membership group or organization.

You can file a trademark application on your own, or you can seek legal advice from a knowledgeable attorney with intellectual property law experience, who is licensed to practice law in the United States. If you have any further questions regarding any issue concerning trademarks and what it entails to register one, the lawyers of UpCounsel will assist you in understanding this type of intellectual property law and help you decide what is best for you and your business.

If you need help with Section 1, a trademark, 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 such as Google, Menlo Ventures, and Airbnb.