Many businesses find it advantageous to put unique symbols on their products. The symbols, called trademarks, tell a consumer which company has made a product and can be an easy way to advertise a business. This is why the US government and states have set out laws governing trademarks and protecting your rights as an owner of a trademark.
What Is A Trademark
A trademark is a symbol, design, word, phrase, or combination of these that distinguish one source of goods from another. This can sometimes be stretched to include a physical aspect of a property that marks the commercial look or feel of a product or service, which is called ‘trade dress.’ Trademarks are primarily covered by the Lanham Act of 1946. The act requires that a trademark be both distinctive and in use in commerce. The trademark cannot be a part of a product’s function, however.
Levels of Distinctiveness
All trademarks are distinctive by definition, but there are tiers of distinctiveness. There are 4 categories of distinctiveness.
- Arbitrary/ Fanciful marks are symbols invented solely to be trademarks and aren’t intuitively related to the product they sell. These marks are considered inherently distinctive and are given wide protections.
- Suggestive marks are related to the product or company they represent, but it takes some imagination on the consumer’s part to make the connection. These marks or names are considered inherently distinctive because a competitor doesn’t need to use the symbol or word to describe their product.
- Descriptive marks are marks that describe a product. Competing companies would naturally use the word to describe their product or service, so the mark only gets protected status if it has acquired a secondary meaning that associates it with only one company.
- Generic marks have no trademark protection because they are the way most people would describe a genus or type of product.
Acquiring Your Trademark
There are two ways to get a trademark.
- Sell a product with your mark on it before anyone else.
- Register the mark with the US Patent and Trademark Office.
If a business is the first to put a particular mark on a product, that entity will have priority in using it in the area where it is doing business and areas where its business is likely to expand. Registering a trademark with the USPTO in accordance with the Lanham Act lets a person or business use the trademark throughout the country, except any places where other businesses were already using it. Registering it with the USPTO also notifies other people that a company has a right to the mark. A business can apply to register a trademark it isn’t using yet if it promises in good faith to use the mark at a future date prior to registration.
Losing Your Trademark
A business or person can lose your trademark in three ways.
- The business can stop using it.
- The trademark can be improperly assigned, meaning that a person assigns it to some other entity without selling or giving them the goodwill that goes with it.
- Trademarks can be improperly licensed, meaning that the person licensing them hasn’t specified adequate control or supervision over the mark.
A trademark can also lose its effect by becoming associated in the public’s mind with a particular type of product instead of a particular company, such as Aspirin or Escalator. Here, the marks have become generic terms for the goods associated with the marks.
Trademark Dilution
One possible threat to a business’s trademark is a third party using a similar mark. There can be trademark dilution by ‘blurring’ when the third party uses a mark so similar that the consumer’s perception of the trademark as associated with a particular business is weakened. There is also trademark dilution by ‘tarnishment,’ which is when a third party uses a similar trademark in a way that will damage the original owner’s reputation through association. This is covered through the Federal Trademark Dilution Act of 1995, which sets out what the plaintiff must prove in order to make a case for dilution. This can be litigated to protect your business’s image.
Consult The Trademark Experts
If you have a company in the Tampa area and you deal with trademarked products or services, then Larson & Larson can help you protect your trademark. Contact us to learn more.