It is always important stand out from your competitors and create a loyal customer base. One of the ways you can do that is by using a trademark.
A trademark is a word, phrase, symbol, design, or a combination of these things that identifies your goods or services. It’s how customers recognize you in the marketplace and distinguish you from your competitors. For example, when you see the golden arches, you instantly think of McDonald’s. When you hear “Just Do It”, you associate it with Nike. These are examples of trademarks that have become iconic and memorable.
A trademark can also refer to both trademarks and service marks. A trademark is used for goods, while a service mark is used for services. For instance, Apple is a trademark for computers and phones, while Apple Music is a service mark for streaming music.
What does a trademark do?
A trademark does more than just identify your goods or services. It also provides legal protection for your brand. It helps you guard against counterfeiting and fraud, and it gives you the exclusive right to use your mark in connection with your goods or services. It also allows you to sue anyone who infringes your mark or tries to confuse customers by using a similar mark.
A trademark also helps you build goodwill and reputation with your customers. It signals that your goods or services are of a certain quality and origin, and it creates an emotional connection with your customers. A trademark can also increase the value of your business if you decide to sell it or license it to others.
What does a trademark need to do in order to function as a trademark?
Simply using a word, phrase, symbol, or design is not enough to function as a trademark. A trademark needs to have a commercial component, meaning that it needs to be connected with specific goods or services that are offered in the market. For example, you can’t trademark the word “love” by itself, because it’s too abstract and generic. But you can trademark “Love Beauty and Planet” for selling personal care products, because it’s distinctive and identifies the source of your goods.
Beyond having a commercial component, a trademark also needs to be distinctive and not descriptive of your goods or services. For example, you can’t trademark the word “book” for selling books, because that’s too generic and descriptive. But you can trademark “Amazon” for selling books online, because that’s distinctive and arbitrary.
There are different levels of distinctiveness for trademarks, ranging from fanciful to generic. Here’s a brief overview:
These are made-up words that have no meaning other than as trademarks. Examples are Kodak, Xerox, and Google.
These are existing words that have no relation to the goods or services they identify such as Apple, Nike, and Shell.
These can hint at the nature or quality of the goods or services without directly describing them. For example: Netflix, Jaguar, and Coppertone.
These merely describe the goods or services or their characteristics. Examples are Best Buy, American Airlines, and Pizza Hut. Descriptive marks are not distinctive enough to be registered as trademarks unless they acquire secondary meaning, which means that consumers associate them with a specific source over time.
These are literally what the goods or services are. Said another way, they are the common name for the goods or services. Words like aspirin, bicycle, and cheese are all generic. Generic words can never function as trademarks because they don’t distinguish one source from another.
What are some examples of what would not be considered a trademark?
As we’ve seen, not everything can be considered a trademark. Here are some examples of what would not be considered a trademark:
Common words or phrases that are used in everyday language or in the industry. For example, “happy hour”, “low fat”, and “organic” are not trademarks because they are generic terms that anyone can use.
Functional features or designs that are essential to the use or purpose of the goods or services. For example, the shape of a bottle, the color of a pill, or the sound of an engine are typically not trademarks because they serve a functional purpose and are not ornamental or distinctive—but there are exceptions (like the unique and non-functional design of a Coca-Cola bottle, which is trademarked—this is called “trade dress”).
Names or titles of books, movies, songs, or other works of art. For example, you can’t trademark “The Stand” for selling books, because it’s the title of a popular novel. However, you can trademark “Harry Potter” for a book or movie series, because titles of series can be trademarked. Likewise, the name could also be trademarked for selling merchandise related to the novel and movie series, such as clothing, toys, or games.
Geographic names or terms that describe where the goods or services come from. For example, you can’t trademark “New York” for selling pizza, because it’s a geographic term that indicates the origin of the pizza. However, you can trademark “New York Pizza” for selling pizza, because it’s distinctive and suggests a certain style or quality of pizza.
Surnames or personal names that are not distinctive or famous. For example, you can’t trademark “Smith” for selling shoes, because it’s a common surname that doesn’t identify your goods or services. However, you might be able to trademark “Smith Shoes” for selling shoes, because it’s a little more distinctive and identifies your goods or services (although, in this case, it’s possible that the USPTO could demand that it be amended to the supplemental register).
Marks that are deceptive, or likely to mislead consumers. For example, you can’t use “Coca-Coola” for selling soft drinks because it’s deceptive and likely to mislead consumers. You also likely can’t use “Cure Cancer” for selling health supplements, because it’s deceptive and likely to mislead consumers.
A trademark is a valuable asset for any business that wants to create a unique identity and protect its brand. A trademark can be any word, phrase, symbol, design, or a combination of these things that identifies your goods or services and distinguishes them from others in the market.
To function as a trademark, it needs to have a commercial use. It should be distinctive and not descriptive of your goods or services. It also needs to avoid infringing on existing trademarks or violating any laws or regulations.
If you want to register your trademark with the USPTO, you’ll need to follow certain steps and requirements, such as conducting a trademark search, filing an application, paying fees, and responding to any objections or oppositions. Registering your trademark will give you nationwide rights and benefits, such as the ability to sue infringers, stop imports of counterfeit goods, and use the ® symbol.
Contact us if you need help with trademarking your brand or if you have any questions.