What is Covered By a Trademark?
Like patents, trademarks are an important way for American innovators to maintain the competitive advantages of their efforts. Trademarks were only granted in individual states until the late 1800s, when Congress enacted the first federal trademark law. Since then, a considerable amount of litigation has come to define trademarks, the rights and protections they convey and what exactly constitutes infringement.
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Function
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A trademark serves to identify the source of a product or service. They are used to assure consumers that the product or service will meet the same standards of quality they might expect from previous consumption or advertisements. Thus, a major function of trademarks is to encourage brand recognition and stimulate buying. But a trademark also confers on the owner the right to exclusively use a certain sign or symbol and to legally prevent its duplication or imitation by competitors.
Features
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The primary feature of a trademark, as recognized by courts, is that it must be distinctive. This prevents the trademarking of generic words or images. Legitimate trademarks generally fall into one of three categories. They may be fanciful, such as the Nike swoosh, and bear no direct relation to the product or service they represent. On the other hand, a descriptive trademark, such as Jiffylube, directly describes an aspect of the product or service. Trademarks may also be suggestive, such as Pepsi, which conjures feelings of stimulation without specifically describing the product itself.
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Significance
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The U.S. Patent Office, which is responsible for registering trademarks, does not enforce trademark protection, but rather leaves it to the trademark holder to seek relief in a court of law. A trademark entitles the owner to prevent use of the trademarked name or symbol or even similar items that may cause confusion for a consumer. The likelihood of confusion is the standard by which courts measure trademark infringement, weighing such factors as the similarity of the underlying products and markets, their physical proximity and evidence of actual confusion. In a landmark case, Apple Computers and Apple Records were deemed to have distinct trademarks, though both have similar names and use depictions of the fruit, because their products and markets were substantially different and unlikely to create confusion.
Time Frame
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Unlike patents, which expire after 20 years, trademarks are held in perpetuity so long as they are in use. A trademark is considered legally abandoned, however, if it is not used for three successive years. Trademarks can also be the victims of their own success if they become generic terms for a product. Once trademarked terms such as thermos, aspirin and cellophane have been deemed by courts to no longer be trademarks by virtue of having become broad terms for a product not linked to a specific producer.
Types
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While the most common trademarks are words or symbols, aspects of a product can also be trademarked if they do not represent a functional advantage. A classic example is the curved Coca-Cola bottle, which has become indelibly associated with a product from a specific source, but has no impact on the actual product or its use. Such trademarks are called "trade dress." Trademarks that describe a service rather than a product are called service marks, and, like trade dress, are treated legally the same as other trademarks.
Considerations
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A trademark need not be registered to be enforceable. Simple use of a trademark can create a link between a mark and a product that would satisfy the likelihood of confusion test. Registering a trademark, however, serves to notify the nation that a trademark is in use and provides evidence of usage. In a case of infringement, proving prior use can be a crucial element of demonstrating an enforceable trademark.
Identification
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If a trademark is registered, it is usually identified as such with the encircled R symbol. Alternately, the TM superscript is also used to denote a trademark, whether registered or not.
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Resources
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