Trademark
A trademark is a distinctive symbol, design, logo, word, phrase, or a combination thereof that identifies and distinguishes the goods or services of one company from those of another. This can also extend to colors, sounds, shapes, and even scents. Trademarks play a crucial role in helping consumers recognize specific brands, thereby protecting a company’s financial interests and reputation. For instance, Nike's iconic "swoosh" logo allows customers to easily identify their products. In the United States, trademark protection began post-Civil War, culminating in the Lanham Act of 1946, which established federal protection for trademarks and created an agency focused on trademark matters. To register a trademark, a business must choose a mark, ensure its eligibility, and apply through the U.S. Patent and Trademark Office (USPTO), a process that may benefit from legal assistance. Registered trademarks are denoted by the ® symbol, while unregistered trademarks that are intended for future registration use the ™ symbol. It is important to note that trademark registration is specific to the U.S., and businesses seeking international protection must register separately in each country where they operate.
Trademark
A trademark is any unique symbol, design, logo, word, phrase, or combination of these used in business to identify the goods or services of a particular company from those of another company. Trademarks can also be issued for colors, sounds, shapes, and even smells. Marks specifically designed to identify a service are called service marks, which are essentially the same as trademarks used for merchandise but for services.
Trademarks serve several purposes. At the consumer level, trademarks help customers distinguish one company's product from another's. At a shoe store, trademarks can help customers identify the different brands of shoes. For example, Nike's famous "swoosh," which resembles a checkmark, allows customers to distinguish Nike sneakers from other brands. At the business level, a trademark protects a company's financial interest in its products or services. Nike is a well-known brand. The company has existed for many years and has built a solid reputation with its customers. Therefore, Nike's trademark also represents the company's commitment to its brand and its customers. The trademark protects Nike from other companies that might try to make a profit off its good name and product design.
There are two symbols used to denote a trademark. One is an "R" inside a circle —®. This symbol notifies consumers or other businesses that the company's trademark has been registered with the U.S. Patent and Trademark Office (USPTO). The other is represented by the letters "TM" set in superscript—™. This symbol indicates the trademark is not registered but that the company has intent to register it.
History of Trademarks
In the United States, trademark protection did not begin until after the Civil War. The U.S. Congress passed the first trademark law in 1870, but the Supreme Court overturned it several years later because it was too broad. Another law, the Trademark Act of 1881, was passed soon after. However, this law was also problematic, mostly because it did not clearly define what trademarks could be or who could sue for trademark infringement.
More than sixty years later, U.S. representative Fritz Lanham presented several bills in Congress that helped establish modern trademark law. The Lanham Act, enacted in 1946, afforded companies federal protection for the unique marks used to identify their products. The act also created a new agency within the U.S. Patent Office to handle trademarks. Since its inception, the Lanham Act has been updated several times. It was during one of these updates in the 1980s that the U.S. Patent Office officially became the U.S. Patent and Trademark Office.
How to Apply for a Trademark
There are several steps to apply for a trademark with the U.S. Patent and Trademark Office. The first step is, of course, to choose a trademark. This is sometimes a complicated process. First, companies must determine whether the mark they have chosen is eligible for trademark protection. Not all marks are able to be trademarked under federal law. Additionally, the mark that a company chooses may be too similar to a mark that is already registered by another company. The registering company must also specify the format of the mark—a standard mark, a stylized design, or sound mark—and identify the products or services for which the mark will be used. Because this can be a difficult and confusing process, the USPTO does recommend companies hire a trademark attorney to help them navigate the process and complete the application for a registered trademark.
Once the application is submitted, the USPTO reviews the trademark application to make sure it meets the minimum requirements. If everything checks out, the application is sent to a USPTO examining attorney. It is this attorney's job to ensure that the trademark application follows all rules and includes the necessary registration fees. Once the application clears the examining attorney, the USPTO publishes the company's desired trademark in a weekly publication called the Official Gazette. This allows other companies or individuals to view the proposed trademark before it is registered. If an individual feels the proposed trademark would damage his or her business, then that person has thirty days to file an opposition to the registration or request that the USPTO provide additional time to oppose the trademark application.
If the application is not opposed, then the USPTO will register the trademark and provide the company or individual with a certificate of registration. From that point on, it is the responsibility of the trademark holder to maintain the trademark's registration. It is also the trademark holder's job to ensure that the trademark is not being infringed upon. While the USPTO does try to ensure that similar trademarks are not registered, the agency does not monitor the use of marks in the business world.
Companies also have the option of registering a trademark at the state level. However, some trademarks may still be protected under certain state and federal laws even if they are not registered. Registering a trademark in the United States at a state or federal level is not necessary, but experts agree that registering a mark makes it easier for the mark's owner to build a case for infringement if another company misuses the mark in the future.
Registering a trademark with the USPTO does not provide protection outside the United States. Companies that wish to use a trademark for international business purposes need to register the mark in each country where the company intends to sell merchandise or provide services.
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