What are the Basics of Trademarks?

Since very early in history, symbols have been used to signify the source of a good or service (e.g., branding cows to designate ownership). In today’s commercial world, it is virtually impossible to avoid the use of trademarks used in conjunction with goods and services in the marketplace. Trademarks essentially allow businesses to protect the symbolic information that relates to their goods and services, by preventing use of the information by competitors.

Trademark Rights

Rights in a trademark automatically arise when the mark is used commercially in conjunction with certain goods or services. Such marks remain protectable so as long as the mark is still used in commerce and it is distinctive. Trade dress is similar to trademarks and can be used to identify and promote the product or service. For example, the shape, color, and design of a product or its packaging can be trade dress. Likewise, the decor and color scheme of a restaurant or store also can be trade dress.

Trademark Registration

A trademark need not be registered with the U.S. Patent and Trademark Office, but if it is registered the owner of the mark has put others on notice that the trademark already is in use. Federal registration also provides the registrant  with the exclusive right to use the mark nationwide on or in connection with the goods or services listed in the registration. In addition, a registrant has the ability to bring an action concerning the mark in federal court and can file the trademark registration with the U.S. Customs Service to prevent importation of infringing foreign goods.

Marks, however, need not be registered to afford some degree of protection. For example, common law rights can be adequate to prevent others from using similar marks when consumers may be deceived as to source or sponsorship of goods or services. Typically, however, common law mark protection is limited to the particular geographical location in which the mark is being used.

Goodwill and Trademarks

Whether the mark is registered or a common law mark, the mark bears no direct value to the products. Companies that build their goodwill associated with the product, however, can often times justify asking for higher prices for their goods or services. To build goodwill, a company should invest in a good branding strategy that includes  investing, developing, and delivering certain promises to the consumer related to the quality and expectations associated with  the brand and/or thecompany.

Intellectual Property Litigation Services

Our IP litigation team handles a broad range of intellectual property (IP) litigation cases, including:

• Patent Litigation

• Copyright Litigation

• Trademark Litigation

• Trade Secret Litigation

• False Advertising Litigation

• Trade Dress Litigation

• Unfair Competition Litigation

• Domain Litigation

• Misappropriation

• Intellectual Property Indemnification

• Patent Indemnification Litigation & Indemnity Disputes

See our Trademark Registration Process for an overview of the trademark process from a search through registration of a trademark.  See also our Trademark Cost & Pricing Options for a discussion of how much a trademark costs and how we bill for our services.

See our Legal FAQs page for the answers to more intellectual property law questions.

Klemchuk PLLC is a leading intellectual property law firm focusing on litigation, anti-counterfeiting, trademarks, patents, and business law. We help clients protect innovation and increase market share through investments in IP.

This article has been provided for informational purposes only and is not intended and should not be construed to constitute legal advice. Please consult your attorneys in connection with any fact-specific situation under federal law and the applicable state or local laws that may impose additional obligations on you and your company. © 2024 Klemchuk PLLC