what is a trademark
A trademark is a word, phrase, symbol, or design, logo, or a combination of elements that identify and distinguish
the source of the goods of one business or individual from those of others. A service mark is the same as a trademark, except that it identifies and distinguishes
the source of a service rather than
the source of the goods.
Trademark, Copyrights, and Patent Protections
Trademarks, copyrights, and patents protect different types of intellectual property. A trademark protects the rights of an individual or businesses which use distinctive names, designs, logos, slogans or other signifiers to identify and distinguish their products and services. Copyrights protects an original creative expression produced by authors, composers, artists, designers, programmers, and similar creative individuals. There are three types of patents: utility, design, and plant. Utility patents (which are the most common patent) are granted to the inventor of a new, nonobvious invention.
Trademark Symbols
A business or individual may claim exclusive rights to its trademark or service mark by employing the use of the "TM" (trademark) or "SM" (service mark) designation to put the public on notice of the claim of ownership of the trademark or service mark, regardless of whether the individual or business has filed an application with the United States Patent and Trademark Office (USPTO). The federal registration symbol "R" or
® may only be employed after the USPTO actually registers the trademark or service mark, and not while the
trademark application is pending.
Trademark Selection
Trademarks typically fall into five different categories:
» Fanciful
» Arbitrary
» Suggestive
» Descriptive
» Generic
Each category of trademark has its advantages and disadvantages with regard to trademark protection and ease of marketing and advertising.
Fanciful Marks
A fanciful mark is essentially a coined or made-up word that never existed before. These marks are generally the easiest to register and the hardest to market. Classic examples of fanciful marks are
Exxon®, Kodak®, Oreo®, Xerox®. These coined words are completely invented for the sole purpose of functioning as a trademark. As such, fanciful marks are considered the strongest type of trademark, but will likely take much effort and many dollars in advertising to connect the mark to the product or service.
Arbitrary Marks
An arbitrary mark is a common word, or combination of words, that is used in a way which is completely different than its dictionary meaning. In other words, the literal meaning of the word or combination or words has nothing to do with the product or service. These marks are relatively easy to register and relatively hard to market. A classic example is
Apple® for computers. The actual meaning of
Apple is a round, edible fruit from a small tree. This meaning has nothing to do with computers. But,
Apple has been so well-marketed that now
Apple is associated with computers.
Suggestive Marks
A suggestive trademark is a mark is suggestive of a product or service, but does not describe the product or service. In other words, the product or service given by the mark is indirect or vague. The mark does not explicitly describe what the underlying goods or services are, the mark hints at it. A classic example is the mark
Coppertone®. The
Coppertone trademark requires a leap of imagination and necessitates a little bit of education to explain to consumers what the product is. Suggestive marks are probably the most popular trademarks as they strike a compromise between legal strength and marketing/advertising value and expense - they are a bit easier to register and a bit harder to market.
Descriptive Marks
A descriptive mark describes some quality, characteristic, ingredient or function of the product or service. In other words, a descriptive mark is one that says exactly what product or service is. Little is left to the imagination for a consumer to determine what is being marketed or advertised. Other descriptive marks can be geographic, laudatory or personal surname words. All of these are considered weak marks and are very, very hard to register. Moreover, if a mark is held to be
merely descriptive of the product or service, it is not federally registrable, which means that any business or entrepreneur can use the mark. .