A trademark can be protected through common law and registration through a trademark application with the government. Because of this intellectual property protection, trademarks can become an important asset for a business. In fact, a trademark may be the most enduring asset of your business, as it can be maintained forever as long as it is used.
So, what is a trademark?
A trademark by definition performs two key functions:
- A trademark identifies a source of products of services, and
- A trademark distinguishes the source of goods and services from another.
In other words, a trademark is vital to your business if you are competing as a creator of goods and services because it is what consumers will use to identify your products and services among the crowd. Without this figurative ID card, consumers may have more difficulty remaining loyal to your products or services. A trademark helps your customers to return for more of what you are selling, and spread your brand to others.
What can function as a trademark?
Words can function as a trademark and is the most commons. Sometimes, new words can be created to function as a trademark. These are usually known as fanciful marks. Unique words like COCA-COLA, KODAK and VERIZON can be very strong trademarks. In today’s world of social media, a good word mark can be a huge advantage to your company.
Trade names of a business, which comprise words, can function as a trademark. Using a name as a mark to designate the source of goods or services is very common. Examples include both strong fanciful names like XEROX or LENOVO and suggestive names like IBM or PETSAFE.
Symbols can function as a trademark and are often combined with words to create a hybrid mark. While symbols can be more difficult to develop recognition by the public, once established they provide an advantage for marketing through visual media. Examples include the NIKE Swoosh, the ATT Globe, and the GRASSROOTS COFFEE Tree.
Sounds can function as a trademark. Like symbols, it can be more difficult to develop recognition by the public. Sounds also were not historically recognized as trademarks, making them even more difficult to register. However, once established sounds also provide an advantage in marketing through diverse media like radio and television. I’ve noticed that OOMA uses a special sound for their internet telephone systems. In one really controversial case, Harley-Davidson filed a trademark application to register the sound of their motorcycles. After several years of opposition and litigation, Harley-Davidson gave up.
Only a few years ago in the case of Qualitex Co. v. Jacobson Products Co., Inc., 514 U.S. 159 (1995), the United States Supreme Court determined that color can function as a trademark.. Proper representation of color in a trademark application for registration can be a difficulty in getting a trademark registration. Many companies use color as a trademark, but do not file for trademark registration, or use color as a part of the registration of a symbol. One interesting point, pharmaceutical companies cannot register the color of drug packaging or pill color because of public policy. Thus, generic drug makers are able to make packaging and pill that are consistent in color with the brand names.
Where Should You Start?
Clark & Bellamy recommends starting your trademark strategy for your brand with a word mark. As you grow, you will want to consider how these other forms of trademark can enhance your identity to the public and distinguish your products or services.