Choosing and protecting the right logo and brand name can make or break a new business. Choosing the wrong name or mark can trigger costly litigation. The following overview provides some basic rules about selecting, registering and enforcing trademarks and service marks in the U.S.
What's a Trademark?A trademark is a business' exclusive label for identifying the source or origin of a particular business' goods or services. A trademark may be a name, symbol, word, color, number, sound, picture, package or even a fragrance indicating a particular source or origin of goods or services. For example, the musical notes "GEC" for the General Electric Corporation, but not the theme song for a musical artist; "Exxon" for petroleum products; the color gold for dry cleaning mats or the color pink for fiberglass insulation; the storybook character Peter Rabbit for F. Warne & Co. The United States Patent and Trademark Office ("PTO") classifies goods and services in 34 International Classes of goods and 8 classes of services for a total of 42 International Classes. "Certification marks" indicate a quality standard such as the "Good Housekeeping" seal of approval or the "UL Laboratories" inspection label. "Collective marks" indicate membership in a group or association such as the "NFL" or the "PGA Tour".
The spectrum of trademarks ranging from the strongest types of marks to the weakest marks include fanciful or 'coined' marks such as "Xerox" or "Kodak", arbitrary marks such as "Yahoo" for web services, suggestive marks such as "Greyhound" for bus transportation or "Coppertone" for suntan lotion, descriptive marks such as "Food 4 Less" for grocery stores, and generic marks, which are not entitled to trademark protection, such as "escalator", "aspirin" and "cellophane".
Domain names alone are not trademarks.
How to Get a TrademarkTrademarks rights are acquired by selecting a word, symbol, name or logo and using that designation in connection with selling goods or rendering services. A "service mark" is a type of trademark designating the source of services, rather than goods, such as painting, animating or musical services. Unlike copyright infringement, original creation is not a defense to trademark infringement. In other words, if another company (the "senior user") is using the same or similar mark to sell the same or related goods or services creating a likelihood that consumers will be confused as to which company is the source of the goods or services, the junior user's mark will not qualify for trademark registration because of the likelihood of consumer confusion, even if the junior user's mark was a totally original creation and not copied from the senior user. For this reason it is essential that a trademark search be conducted to ascertain whether any similar marks already exist before adopting a particular designation as a trademark.