What is a Trademark?

September 25, 2015

©John Burton 2009

A trademark is the actual name of a product (Coke for soft drinks).  Trademarks/brand names identify the product as coming from a particular company and it also identifies and distinguishes that product from products sold by others.  A service mark is the same as a trademark, except that it identifies and distinguishes the source of a service as opposed to a product.  Greyhound Lines is a service mark for passenger bus services.

Examples of types of trademarks are:

  1. Words: Coke, Sony, Nike.
  2. Logos:  Nike “Swoosh”; Mercedes symbol; Polo clothing   symbol;
  3. Numbers: 7-11 for convenience stores;
  4. Slogans/Phrases:

“Don’t leave home without it.”  (American Express).

“You’re in good hands with Allstate.”

  1. Other Devices:
  • shape of the Coca-Cola bottle;
  • sound of NBC’s’s three chimes; and
  • fragrance of sewing thread.
  1. Color: Color, alone, may be serve as a trademark if it has established secondary meaning, there is no competitive need for colors to remain available in the industry and the color is not functional (i.e. the color is not essential to  product use or purpose and does not affect product cost or quality)  See Owens-Corning pink insulation.

The functions of a trademark are:

  • It identifies a seller’s goods and services and distinguishes them from the goods/services of others.
  • It signifies that all goods/services bearing the mark come from or are controlled by

a single source.

  • It signifies that all goods/services bearing the mark are of equal level of quality.
  • It protects consumers against deceit as to the source of consumer purchases.
  • It is a key tool in advertising and selling goods/services.

A trademark must be distinctive to serve as an identifier of goods and services. Marks are categorized along the following spectrum, from the strongest to the weakest marks:

  • Fanciful/Coined Marks – invented words with no dictionary meaning receive the broadest and strongest level of protection. Examples of Fanciful/Coined Marks are Xerox, Exxon, Kodak, Rolex, K-Mart, Polaroid, Clorox.
  • Arbitrary Marks – words in common use which bear no relationship to the associated goods.  Examples of arbitrary marks include Ivory for soap; Apple for computers; Camel for cigarettes, Amazon for an e-commerce website.
  • Suggestive Marks – a mark which suggests some quality or feature of the associated goods, but they also identify source immediately.  They are protectable. Examples of suggestive marks:  Citibank for banking services; Playboy for a mens magazine; Q-Tips for cotton medical swabs, Chicken of the Sea for tuna; Coppertone for sun tan lotion.
  • Descriptive Marks – a mark which describes some characteristic, quality, purpose, component or other property of the product.  They describe, rather than identify the source of a product and are unprotectable unless they have established secondary meaning, i.e. the public knows they come from a single source (developed over a period of time through substantial use, sales and advertising).  Examples of Descriptive Marks—Raisin Bran for cereal, Vision Center for optical clinics; Honey-Baked Hams for hams; Sports Illustrated for sports magazine; General Motors for automobile manufacturer.
  • Generic Marks – common name for product or service mark.  Can never be protectable as the mark identifies the product itself as opposed to the source of the product.  Examples of generic marks: Lite for beer; Super Glue for glue; First National Bank for banks; You Have Mail for email alerts; Chair for a chairs; Computer for computers.

Careful consideration must be given when choosing a trademark and utilization of a good trademark firm is strongly recommended.  May we suggest such a firm?




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