What Is a Trademark?

A trademark is a word, phrase, and/or design that serves to identify the source of a product or service in the eyes of consumers.

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 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.

What can a trademark be?

As mentioned, trademarks are typically a word, phrase, and/or design. However, they can also be a sensory mark such as a color, sound, or even a scent, that—due to its distinctive use—becomes a symbol of a company, product, or service.

“Service Marks” refer to marks used in connection with offering services, rather than products.  However, the term “Trademark” is used interchangeably to refer to marks used both on products and with services.

Trade dress is similar to a trademark 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.

Examples of well-known trademarks include:

• the “swish” symbol for NIKE® products

• APPLE® for computer-related products and services

• the lion roar for motion pictures by Metro-Goldwyn-Mayer Lion Corp.

• the light blue color for Tiffany jewelry boxes

Trademark Rights

Unlike patents or copyrights, rights in a trademark do not arise merely with registration. In fact, registration of a trademark is contingent upon use, or intended use. of the trademark in commerce.

Instead, rights in a trademark automatically arise at common law when the mark is used commercially in conjunction with certain goods or services. Such marks remain protectable so long as the mark is still used in commerce and is distinctive.

Trademarks and Goodwill

Surprisingly, a trademark bears no direct value to the product or service. 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 the company.

A business seeking to protect the hard-earned goodwill associated with its product or service should be well versed in how rights in trademarks arise at common law and how the trademark registration process works.

For more information on trademarks and intellectual property in general, see our trademark services and intellectual property practice pages.

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