Trademark Protection

A trademark is any word, phrase, symbol, design, or combination that identifies and distinguishes the source of goods or services. Trademarks are essential to consumer protection and brand building.

What Can Be Trademarked?

Trademarks can take many forms:

Word marks — brand names (Google, Nike, Coca-Cola)

Design marks — logos and symbols (the Apple logo, the Nike swoosh)

Slogans — taglines ("Just Do It," "I'm Lovin' It")

Trade dress — the overall visual appearance of a product or its packaging

Sound marks — distinctive sounds (NBC chimes, the MGM lion's roar)

Color marks — colors associated with a brand (Tiffany blue, UPS brown)

The Spectrum of Distinctiveness

Trademark protection depends on how distinctive the mark is:

1. Fanciful — invented words (Xerox, Kodak) — strongest protection

2. Arbitrary — common words used in unrelated contexts (Apple for computers) — strong

3. Suggestive — hints at the product without describing it (Netflix) — moderate

4. Descriptive — describes the product (American Airlines) — protected only with secondary meaning

5. Generic — the common name for the product (aspirin, escalator) — no protection

Registration

While trademark rights arise from use in commerce (common law rights), federal registration with the USPTO provides significant benefits:

Nationwide constructive notice of ownership

The right to use the ® symbol

Access to federal courts for enforcement

Presumption of validity and ownership

Ability to record with U.S. Customs to block infringing imports

Infringement and Enforcement

Trademark infringement occurs when another party uses a confusingly similar mark in commerce. Courts consider the likelihood of confusion based on factors including:

Similarity of the marks

Similarity of the goods or services

Strength of the plaintiff's mark

Evidence of actual confusion

The defendant's intent

Maintaining Trademark Rights

Unlike patents and copyrights, trademarks can last indefinitely — but only if properly maintained:

Continue using the mark in commerce

File required maintenance documents with the USPTO (Sections 8 and 9)

Police the mark by challenging infringing uses — failure to enforce can lead to genericide (the mark becoming generic)

Trademark Protection