Trademarks
| Author | Jeffrey Wilson |
| Pages | 991-995 |
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A trademark is a device used by businesses to distinguish their goods and services from competitors' goods and services. It may consist of a word, a symbol, a logo, or any combination thereof, so long as it clearly signifies the source of ownership for a product or service. Adidas is an example of a trademarked name, McDonald's golden arches is an example of a trademarked symbol, and the NIKE name written above the "swoosh" symbol is an example that combines two types of trademark devices. When a trademark is used to distinguish a service, it is usually called a service mark. "American Express" is the service mark for a well known provider of credit card services.
Consumers rely on trademarks when making their purchases. Trademarks can reflect a product's authenticity, quality, and accumulated customer good will. When a product or service is defective, of poor workmanship, or otherwise unpopular with consumers, its trademark can reflect those undesirable qualities as well. Even when two products are of seemingly equal quality, like two cola soft drinks, their trademarks simply communicate to customers which is which.
Moreover, trademarks serve to protect a business owner's investment in a particular product by preventing competitors from capitalizing on the reputation affiliated with a particular name in the marketplace. They also save new companies from wasting their time trying to market a product under an existing trademark. Before individuals or entities start selling products or services that bear a certain name or logo, they often hire an attorney to investigate prior or existing marks that are in any way the same or similar to the mark they intend to use. Companies that fail to conduct this kind of search or blatantly ignore the existing use of a trademark risk being sued for infringement and ordered by a court to cease promoting their products with a particular mark.
The presence of trademark protection for a good or service is often indicated by a small "R" inside a circle placed near the trademark. The "R" means that the mark has been registered with the U.S. Patent and Trademark Office and serves as a warning against unauthorized use of the mark. Individuals may also claim rights to a particular trademark by displaying the letters "TM" near the mark. Trademarks bearing the "TM" symbol are not registered, but the symbol indicates the owner's intent to register it.
Trademarks are distinct from trade names or trade dress. A trade name is the name or designation used by a business to identify itself and distinguish it from other businesses. By contrast, a trademark distinguishes the line of products from all other product lines, particularly those offered by
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competing businesses. For example, Ford Motor Company is the trade name for a particular maker of automobiles, trucks, and vans that bear the trademark "Ford." Trade dress is the manner in which a business distinguishes a product's appearance from the appearance of a rival's product. Something as simple as a grille on the front end of an automobile may constitute trade dress if it is sufficiently distinctive and the manufacturer takes deliberate and tangible steps to market the grille over a long period of time.
Trademark law in the United States is governed by the Trademark Act of 1946, also known as the Lanham Act (15 U.S.C.A. section 1051 et seq). The Lanham Act codified much of the then existing common law of trademarks, and it also clarified some areas where jurisdictions differed in their approach to particular issues. Congress has since amended the Lanham Act several times, addressing new concerns as they are presented by both trademark owners and consumers. Many states have enacted trademark statutes of their own, which may be applied to legal issues that are not pre-empted by Lanham.
Lanham defines trademarks to include words, names, symbols, and logos that businesses use or intend to use in commerce for the purpose of distinguishing their goods from those made or sold by competitors. The key to any claim for trademark rights is the distinctiveness of the proposed mark. Roughly analogous to the originality requirement for copyright, the distinctiveness requirement for trademarks may be satisfied by proof that the mark is descriptive, suggestive, arbitrary, or fanciful. Proof that a mark is generic will defeat a claim for trademark protection.
A generic name is the common name for a product and thus does nothing to distinguish itself from other products of the same genre. Shoe, ball, hat, and lightbulb are all generic product names that will...
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