What is a Trademark?
Generally, a trademark is a symbol, a design or logo of some kind, a slogan, a device, a musical jingle, or even a trade name like Frank Finkelstein’s Fabulous Falafel, which can uniquely distinguish your goods or services from all similar goods or services available in the market place.
The life of a trademark begins with a great idea for a mark or device that can absolutely singularize your product or service from all other competitors out there. But that is only the starting point.
The odyssey for securing a trade identity really begins when the company needs to meet the challenge of doing all the things necessary to hold on tight to that very unique, differentiating and identifying mark and formally keep the mark for use as its very own.
When is a Formal Trademark Needed?
The best way to understand when or why a business might need to take the steps needed to formally register a logo or a trade name they are using in the marketplace as their trademark is take a look at the history and common law that gave rise the trademark registration process.
Certain State statues and court decisions are grouped together under the title of Unfair Competition. The unfair competition area of law is made up of legal rulings that are employed by State courts to promote and maintain ethical business transactions. Trademark law was first derived from State generated common law which was enacted to prohibit companies from competing unfairly or engaging in any practice that would hinder rather than promote an efficiently operating business marketplace.
Federal Trademark Law
Unlike the federal laws protecting those seeking copyrights and patents which arose under the Articles of the U.S. Constitution, the law regulating trademarks is derived from Congress’s right to regulate interstate commerce. The Lanham Act was enacted to protect consumers purchasing goods or services within interstate commerce from practices that met the definition of unfair competition in business such as trademark dilution, false advertising and trademark infringement. It is the Lanham Act that established the federal trademark registry and the federal remedy for infringement of a federally registered mark. It is the federal trademark registry that is identified by the small “R” in a circle symbol.
Consumer “Good Will”
Whenever two or more businesses are competing for the same consumers it is simple to see that those businesses will compete to attract the attention of those same potential consumers to their product for both immediate sales and to create consumer loyalty to the brand insuring future sales. This is the hard earned process for creating consumer “good will” or trust in a product.
Developing better consumer “good will” is the whole objective of having and using a trademark. A business wants the target consumer to recognize its trademark and to associate it with a positive experience. The positive product recognition may lead to that consumer to opt to buy that product or use the service again and again.
Unfair competition, or trademark law, prohibits one company from using a mark in the marketplace that is so similar to that of another company that the consumer of that type of product becomes confused as to which company actually produced and marked the goods or provided the service. A consumer might mistakenly be driven to purchase goods from one company based on the trademark recognition and “good will” built up in the marketplace by another company resulting in an instance of unfair completion and trademark infringement. Using a copycat trademark in commerce to divert consumer good will toward another brand and damaging the reputation of the original company is called “trademark dilution.”
How To Register a Trademark?
Conjuring up a fantastic trademark design can be and should be a fun and creative process. An idea or concept for a design can come from just about anywhere or anything. The main objective is to somehow latch onto a logo or symbol or device that resonates with the product or service to be marketed and that will have the tendency to attract that business’s niche of product or service consumers. The more unique a symbol is the more likely it is to be successfully registered upon application to State or federal registries. Keep in mind that any mark that is deemed to be a generic mark will not eligible for State or federal registration. A generic mark is one that too general or describes an entire group of products or services.
Strong Marks v. Weak Marks
The object of the game is to create a strong mark for your company and not a weak mark. Designing a strong trademark will assure that the mark is acceptable for either State or federal registration. A mark is considered a strong one when it is inherently distinctive. Use of a strong mark can invoke immediate legal protections for the company and for the mark beginning as soon as it is used in commerce even without any formal registration.
A weak mark is one that is not inherently distinctive. A weak mark simply describes a product by its nature, origin, characteristics or its quality. This type of mark is weak because it is merely descriptive of a product or service and as such it could be describing any number of similar product or service in the general marketplace. A weak mark stands at risk for being turned down for any type of formal registration. A commonly used trade name, like Ed’s Auto Service or Gucci Fashion Accessories, is an example of a weak trademark because consumers can become confused as to the true source of the goods or service.
Registering a Trademark
Once an entrepreneur has finally decided on the trademark or service mark he wants to use to represent his band in the marketplace he may want to opt to formally register the mark. Simply using a mark in commerce without any formal registration will afford a business certain rights in not only the mark itself but in protections against acts of unfair competition by other businesses based on common law rights. So if even if funds are limited for your business it is smart to start using your logo anyway!
Registering your trademark with a State registry or a federal registry will provide your company with a much greater measure of protection against acts of unfair competition. However formal registration will depend on first doing the research and making the determination that no other business entity doing business in a genre similar to your business and also registered to do business in the State where you are doing business, or in the entire country if trying for a federal registration, is already using anything that would be considered a strongly similar logo or symbol to your proposed logo.
State or federal registration can be costly and can involve a significant amount of research of the mark itself prior to being approved for formal registration. However, the benefit far outweighs the costs in the event that your newly formed company succeeds on a State or national basis and needs to subsequently take advantage of the protects provided by formal trademark registration.
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About the Author: Christine Varad is the principal writer and editor for Varacolors. She earned her JD in law from New England Law and holds a BFA from Massachusetts College of Art and Design. As an artist and a lawyer she has a long standing interest in Intellectual Property law and protecting the rights and interests of the writers and visual and performing artists.