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"LAWCHEK® Intellectual Property"
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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.
|
This is not a substitute for legal
advice. An
attorney must be consulted.
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