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What is a trademark?
A trademark is a word, symbol, or device which is used in commerce with
goods to indicate the source of the goods. The trademark distinguishes
one’s goods from the goods of others. A service mark is similar to
trademark except it identifies and distinguishes sources of services
rather than goods. Trademark rights may be exploited to prevent others
from using a confusingly similar mark. Trademarks cannot prevent others
from making or selling the same goods/services under a clearly different
mark.
In the event that you are using or intend to use a mark, you may file
for protection of your trademark based on the types of goods and
services to be covered. Not all terms or phrases are subject to
trademark protection. There are 4 classifications for trademarks and
service marks:
1) Distinctive marks (Dial soap)
2) Suggestive marks (Ivory soap)
3) Descriptive terms (100% pure soap)
4) Generic terms (soap)
Distinctive marks are essentially arbitrary or fanciful names, which
inherently provide the best mode to distinguish your goods from a
competitor. This type of mark either does not describe the product
(arbitrary) or is made up and has no meaning other than the mark itself
(fanciful). For example “Hot Diggity Dog” hot sauce or Dial soap are
both fanciful and arbitrary terms.
Suggestive marks indirectly describes the product or service through
qualitative or characteristic terms and may not provide protection to
prevent others from using similar marks on similar goods.
Descriptive terms include marks that appear to describe the product or
service identified, describe a geographical location where the product
or service originates, or a mark that represent a person’s surname.
These terms can not be registered unless they have created a “secondary
meaning” through use over a period of time, usually a five-year minimum.
A secondary meaning occurs when the public has been exposed to a mark to
the point that they associate the mark with the source of the product or
service and not with the primary meaning. This includes abstract designs
as well.
Generic terms have a meaning that are synonymous with the goods or
service and are not distinguishable from a competitor. Thus, the
descriptive and generic terms ordinarily are not subject to trademark
protection.
It is important to note that you will not be afforded registration
protection for any mark that is immoral, deceptive, scandalous, consists
of a flag or coat of arms of the U.S. or other government entity or U.S.
insignia, any name, portrait, or signature of any living being without
express authorization.
However, if the mark has become distinctive of your goods or services in
commerce, it may still be registered.
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