“Trademark” is an incredibly flexible term. As the United States of Patent and Trademark Office defines it, a trademark is a word, phrase, symbol or design that identifies and distinguishes the source of goods of one party form those of others. However, this technical definition hardly scratches the surface of vast pool of potential trademark.
The Possibilities are limitless
Under U.S. Law practically everything can be registered as a trademark, as the protection only applies in a particular context. The primary restriction is that the trademark cannot be functional, that is, it cannot effect the performance of the good its applied to. For example, while it may be possible to trademark eyeglass frames of a particular color, eyeglass lenses with a particular tint cannot be trademarked, as the tint directly affects the functionality of the eyeglasses. Beyond that, the sky’s the limit. The USPTO and the courts have authorized many trademarks that seem almost bizarre. Examples include the shape of a Coca-Cola bottle and the NBC jingle. Even simple colors can be trademarked, as per the Supreme Court ruling in the case of Qualitex dry cleaning equipment.
Not all Trademarks are same
Not all trademark is created equal. The extent of intellectual property protection depends on how strong the trademark is, which in turn depends on distinctiveness.
- Arbitrarily and Fanciful trademark: are at one end of the spectrum, they are highly distinctive even if they are common words. A Perfect example is Apple’s trademark, which is considered arbitrary and fanciful due to the context (electronics and software) it is used in.
- Suggestive terms enjoy broad protection, but to a lesser degree than arbitrary trademarks.
- Descriptive and generic terms are generally not protected under trademark law and cannot be registered. The exception is when a descriptive trademark becomes associated with the company that manufactures the product, rather than with the product itself.
How to Maintain a Trademark?
Trademark protection does have a limitation. A Trademark owner can loose a trademark if it enters common use and becomes generalised. Such was the fate of Trademark such as nylon, aspirin, xerox, brand aid. The question often becomes not what can be trademarked, but how can it remain trademarked. A Trademark can be maintained actively and visibly making effort to protect it which may result in its being upheld despite the word entering common use. For example, Google and Adobe have failed to stem the adoption of “to google” as a synonym for searching the web or “to photoshop” as shorthand for modifying images through digital means, but their efforts to protect their trademarks have resulted in continued legal protection for the terms.
What can be trademark?
A phrase, word, symbol, device or even a color are all eligible for a trademark. Anything that distinguishes the goods for your party or company from another qualifies. However the article must be used in commercial setting to obtain protection from the law. Trademark have a 10-year protection span.
Trademark are important to:
- Distinguish your company from others
- Indicate the source of goods
- Distinguish your service from others
- Give permission to other companies for cobranding
- Indicate a membership in a union
A trademark able symbol also lets customers know who you are.
Reasons to Consider Using a Trademark
A trademark is valuable and flexible. Logos, symbols, words, and even colors can be trademarked. The only difference is that the trademark cannot affect the good at hand. For example, you couldn’t trademark tinted glasses because the tint directly affects the product.
There are three possible trademark categories in terms of intellectual property:
- Generic Terms. These typically cannot be trademarked because they don’t give the consumer a distinct idea. However, terms can become synonymous with each other for trademark, such as a tissue and Kleenex.
- Arbitrary and Fanciful Terms. These are the best types to trademark because they have an obvious distinction from other products.
- Suggestive Terms. These are the middle ground of a trademark. They enjoy more protection than generic terms but less than fanciful.