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What is a trademark? |
A trademark is any word, symbol or
device, or combination thereof, that is used to identify and
distinguish a person's goods from goods manufactured or sold by
others and to indicate the source of those goods, even if that
source is unknown. 15 U.S.C. § 1127. A service
mark is similar to a trademark, except it relates to services
rather than goods. Trademarks serve three main
functions: (1) distinguish goods from those of
competitors; (2) guarantee quality of the goods; and (3)
advertise, promote and sell the goods. Traditionally,
the legal protection of trademarks was considered part of the
common law doctrine of unfair competition. Today,
both federal law and the state law of all fifty states provide
registration and enforcement of trademark rights.
In order to be protected under
trademark law, a trademark must be "distinctive." This
means that the trademark must distinguish the trademark user's
goods from the goods of others. Trademarks vary in
distinctiveness, ranging from (strongest to weakest): fanciful
(Exxon), arbitrary (Apple computers), suggestive (Coppertone
suntan oil), descriptive (Weight Watchers food products) and
generic (linoleum). Fanciful, arbitrary and
suggestive marks are inherently distinctive, and they are
registerable without further evidence of distinctiveness. Descriptive
marks, absent a showing of "secondary meaning," are not
registerable as trademarks. A mark acquires
secondary meaning through exclusive use for an extensive time
period such that the public associates the mark as an indication
of origin, rather than in its primary descriptive sense. Generic
terms are not protectable at all.
When properly used, a trademark is
always an adjective and never a noun or verb. Allowing
a mark to be used as a noun may result in the mark becoming
generic. Examples of former trademarks that later
became generic include aspirin, escalator, thermos and
cellophane. Trademark law requires that the mark
cannot merely be used in advertisements and must be affixed to
the goods or their containers or displays associated therewith
or placed on the tags or labels attached to the goods or
containers. 15 U.S.C. § 1127. Congressional power to regulate trademarks arises under the Commerce Clause of the Constitution (U.S. Const. art. I, § 8, cl. 3). The federal trademark law, usually referred to as the Lanham Act (15 U.S.C § 1051 et seq.), provides for federal registration in the U.S. Patent and Trademark Office (PTO) of trademarks that have been used in commerce. Federally registerable trademarks are registered on the Principal Register, while "marks capable of distinguishing applicant's goods or services and not registerable on the principal register" are registerable on the Supplemental Register. 15 U.S.C. § 1091. The legally binding rules of practice in trademark cases, which must be followed by applicants in applying for a trademark and the PTO in examining applications, are provided at 37 C.F.R. § 2.1 et seq. |
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