Trademarking: What is a Trademark?

Trademarks and service marks are words, names, symbols, or devices used by manufacturers of goods and providers of services to identify their goods and services, and to distinguish their goods and services from goods manufactured and sold by others. Some of the most famous examples of trademarking are: Tylenol® for pain medicine, Apple® for computers, the NBC peacock, and the color blue for Tiffany’s jewelry.

Trademarking: Availability of Protection

Trademarking is available for words, names, symbols, or devices that are capable of distinguishing the owner’s goods or services from the goods or services of others. A trademark that merely describes a class of goods rather than distinguishing the trademark owner’s goods from goods provided by others is not protectible. For example, the phrase “corn flakes” by itself is not protectible as a trademark for cereal because that term describes a type of cereal that is sold by a number of cereal manufacturers rather than distinguishing one cereal manufacturer’s goods.

Obtaining Protection through Trademarking

The most effective trademark protection is obtained by filing a federal trademark registration application in the U.S. Patent and Trademark Office. Although federal law also protects unregistered trademarks, but such protection is very limited.

Scope of Protection

Trademark law in general protects a trademark owner’s commercial identity (goodwill, reputation, and investment in advertising) by giving the trademark owner the exclusive right to use the trademark on the type of goods or services associated with the mark. Any person who uses a trademark in connection with goods or services in a way that is likely to cause confusion is an infringer. Trademark owners can obtain injunctions against the confusing use of their trademarks by others, and they can collect damages for infringement. For example, let’s say that Small Company, Inc. is selling a line of beauty products under the trademark ALLURE. If Giant Company, Inc. starts selling beauty products under the trademark ALLURE, purchasers may think that Giant Company’s products come from the same source as Small Company’s products. Giant Company is infringing Small Company’s trademark rights.

Costs

For information on trademark costs, please see our article How Much Does it Cost to Trademark a Name?