Trademark Law Basics

Trademark law grants the owner of a particular mark the exclusive right to use a mark to differentiate the goods or serviced provided by an individual or business from those of another. A trademark is commonly used to protect a particular word, phrase, logo, design, sound or a combination of these, which are used in relation to goods and services. Trademarks are used to identify the source of a particular good to the consuming public, and are frequently used as an indicator of the quality of the goods. The same is true for marks used in connection with providing a particular service (typically referred to as “servicemarks”). Trademarks can be valuable assets of a business, as the mark associated with the goods or services help a business gain recognition and consumer loyalty and an owner’s rights in the mark continue to grow through continuous use in commerce for extended periods of time.

Trademarks can be registered either at the state or federal level. Prior to registering a trademark, a trademark screening search should be performed on all state and federal registered marks as well as pending marks. Based on the results of the search, a determination of whether to seek federal registration for the trademark can be had. Federal registration provides constructive notice nationwide to all users of a similar mark, whether or not they are aware of the trademark owner’s use of the mark. If a trademark is not being used in interstate commerce, the state-level registration is most appropriate.

The purpose of trademark law is not only to protect the trademark owner, but to protect consumers as well. Trademark law is built on the principle that trademark owners should benefit from the consumer goodwill acquired through continuous and expansive trademark use. The owner of the trademark is protected so that others may not trade on that trademark’s “goodwill,” without the owner’s consent. Accordingly, an owner can prevent another from using a confusingly similar trademark in commerce. Protection of the trademark not only protects the mark, but the goodwill achieved by the owner through advertising, publicity, previous sales, etc.

Trademark law is also concerned with avoiding consumer deception; and as a result, seeks to protect the source as well as quality expectations of consumers. If a trademark is used by someone other than the trademark owner, without the owner’s consent, and in a way that would likely confuse a potential consumer, courts will usually find infringement. Like other types of intellectual property, a trademark can be licensed, bought, sold and assigned.

A trademark will not be registered if the mark does not distinguish goods or services from those used by its competitors. Even if a mark appears to be non-distinctive on its surface [e.g., the mark may be protected if it acquired secondary meaning]. Secondary meaning is acquired through the prolonged, exclusive use of the mark such that it comes to indicate the origin of goods at issue, through strong consumer association, e.g. “Windows” for windowing software.

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