A trademark is a word, name, symbol or device used in trade with goods to indicate the source or origin of the goods and to distinguish them from the goods of others. Trademarks are ubiquitous in the world of business and include many different types of marks. For example, some of the more common types of trademark, brand names and logos, help distinguish a company’s products from its competitors’. Advertising slogans, which strengthen a corporate reputation in the minds of consumers, can also be trademarked. Certification marks, which are also a type of trademark, attest that a product meets a specified set of standards.
How to trademark? This is a question that many people consider when considering some of the legal aspects of securing their intellectual property. You have developed a new product and you want to select a trademark under which you would sell the product. A trademark is a brand or name which identifies the source or origin of goods or services and usually is associated with good will which already exists or is expected to be developed when the trademark is used with the product or service.
Trademarks are generally divided into various tiers of distinctiveness: (a) arbitrary, (b) suggestive, or (c) descriptive. An arbitrary trademark is unrelated to the goods; it does not describe the goods, a characteristic of the goods, or some geographical relation of the goods. A suggestive trademark suggests the goods or a characteristic of the goods; an example is HALO for shampoo–it suggests brightness, for example. A descriptive trademark describes a characteristic of the goods; an example might be TRAVELFAST for travel agency services.
Once the individual decides that a trademark is indeed the appropriate legal application for his idea, it is important for him/her to understand how to address the issue of how to register a trademark. Both the United States Patent and Trademark Office and individual states maintain registries of trademarks, generated by trademark users submitting their marks to be reviewed and entered on the registry. Although trademark rights are established through use of the mark in commerce, not through registration, registering your mark offers numerous important benefits and is therefore strongly recommended for most trademark users.
Registering your trademark puts the public and business on notice of your claim to the mark. Specifically, this helps prevent others from using your mark or potentially conflicting marks. This could save you the hassle of identifying infringers and enforcing the mark.
A key advantage of trademarks is that they give their owners an enforceable right. Indeed, once your trademark rights have been secured, you can legally prevent competitors from using the same or similar marks. If you discover another business making unauthorized use of your trademark, a court can enjoin it from further use and award damages for the infringement. Alternatively, you can license your trademarks to other businesses to receive a licensing fee. Your trademarks – like your employees, your equipment or your business relationships – are an asset that adds value to your business and products.
Trademarks, like other assets, can only realize their maximum value if they are carefully managed. A well maintained trademark portfolio can enhance business relationships, give your business a competitive edge and create licensing revenue. Sound legal and business sense is required to take full advantage of these opportunities.
Poor trademark maintenance can lead to even worse consequences than missed business opportunities. Neglecting a trademark or failure to comply with renewal procedures can lead to the forfeiture of your marks. “Genericide”, which occurs when a once-distinctive mark loses its capacity to identify the source of a good, can also diminish your rights. Moreover, failure to take the necessary steps to enforce your mark against infringers can result in the mark’s cancellation.
