What Items Can Be Trademarked?
A trademark, or distinct form a copyright or patent, is simply some symbol, word, or feature that is associated with a specific product or service in public perception. Laws protect such distinguishing features as the property of the business employing them so long as they remain in use.
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Identification
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If a trademark is registered, it is usually identified as such with the encircled R symbol. The trademark (TM) superscript is also used to denote a trademark, registered or not. Words and symbols are the most common trademarks, but aspects of a product can also be trademarks if they do not contribute to a functional advantage. For example, the famous curved Coca-Cola bottle has no impact on the actual product or its use, but has become undeniably associated with the specific brand. This is a special type of trademark called "trade dress." Trademarks that describe a service rather than a product are called service marks and, like trade dress, are treated the same as other trademarks.
Features
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In addition to being linked to a specific product, legitimate trademarks have one of three defining characteristics. They can be imaginative, like the Nike swoosh, which has no obvious relation to the product it represents. On the other hand, if descriptive like the trademarked name Jiffylube, it will directly describes an aspect of the product or service involved. Trademarks can also be suggestive, conjuring the experience of the product or service without specifically describing the product or service itself.
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Function
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A trademark need not be registered to be enforceable. Businesses use trademarks as signals to consumers that the product or service will meet the same standards of quality they might expect from previous consumption or advertisements. 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. To truly be associated with a specific product or service, 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.
Significance
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The U.S. Patent Office, which is responsible for registering trademarks, does not enforce trademarks. This is left to the individual trademark holders, who must 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 can cause confusion for a consumer. The court weighs such factors as the similarity of the underlying products and markets, their physical proximity and evidence of actual confusion in the marketplace when making a determination of infringement. Courts determined that 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.
Significance
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There is no time limit to a trademark, unlike patents, which expire after 20 years. The only catch is that the trademark must remain in use. After three successive years of not appearing in the market, a trademark is considered legally abandoned. On the other hand, some trademarks are the victims of their own success if their popularity leads them to 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.
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