Trademarks are a powerful tool used to protect a seller or manufacturer’s intellectual property rights. A trademark is a symbol, phrase or word that is used to identify a specific manufacturer or seller’s products, as well as distinguish those products from others of like-kind. The use of trademarks makes it easier for consumers to identify products and the makers of specific goods. Trademarks also help sellers and manufacturers gain brand-recognition with their consumers.
So, what makes a trademark a “trademark”?
The mark must be distinctive in that it must be able to identify the source of a good. Trademarks have been grouped into four categories in determining whether a mark is distinctive. The relationship between the mark and the underlying product is what primarily separates the categories of trademarks. The requirements for each of the former categories differ, as do the legal protections afforded to that type of trademark. The four categories are the following.
Arbitrary or Fanciful
An example of this would be Apple or Nike. In this case, the mark bears no inherent relation to the actual product. These trademarks are afforded a high degree of protection.
These propose some characteristic of the product or goods. This means the consumer must do a leap in association from the mark to the product. Examples of suggestive marks include 7-Eleven, used to indicate a convenience store that is open from 7am-11pm, and “Coppertone” sunblock, because the title gives some suggestion as to what the product is used for. Like the first category, suggestive marks also get a high degree of protection.
This describes a product rather than suggesting a characteristic of it. Descriptive marks are more about the quality of the product such as its color, function, or ingredients. Classic examples of descriptive marks include, “Sharp” televisions and “Holiday Inn” hotels. Both marks clearly describe the product they are representing. Because a description is not inherently distinctive, they are only protected under trademark law if they have acquired “secondary meaning.” Secondary meaning is needed because descriptions could easily apply to more than one product, therefore, creating an unfair advantage by giving the exclusive right to use to one seller or manufacturer, without more. The factors courts weigh in deciding whether there is secondary meaning are;
(1) the amount and manner of advertising,
(2) the volume of sales,
(3) the length and manner of the term’s use, and
(4) results of consumer surveys.
This is a mark that describes the general category of which the product belongs. Because these marks are so general, there is no protection for them under trademark law. Examples of generic marks include “computer,” and “aspirin.” So, for Apple, Inc. wanting to trademark “computer” or Bayer wanting the same for “aspirin,” neither would be able to trademark these terms, as that would be giving a single manufacturer control over those terms. This likely would lead to a competitive advantage, which is not the purpose behind trademarking. Assuming the trademark qualifies for protection, rights to a trademark can be acquired in two ways; either by being the first to use the mark in commerce, or by being the first to register the mark with the USPTO.
Trademarks are a useful and powerful tool to protect your business’s intellectual property rights. If this sounds like something your business needs, give us a call today. We are happy to help!
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