Trademark Basics
What is Trademark?
A trademark is a word, phrase, design or combination of some, or all, of those things that identifies a good or service. What’s important to understand, though, is that a trademark doesn’t protect that word, phrase, or design from every possible use. Trademark law is intended to prevent consumer confusion and it promotes differentiation between products and identifies the source of the product.
This means that, in most cases, trademarks confer fairly limited rights. If you have a trademark that applies to, say, a haircare line, someone starting a shoe company with the same name probably isn’t violating your trademark. There are some cases where this might not be true if a mark is particular famous…you’d have a difficult time using “Google” even if you somehow managed to stay out of any market that Google/Alphabet is involved in. There have been arguments that “Google” has become generic for online search. I’ll likely discuss how marks become generic later, at which point I’ll get more into that, but so far “Google” is still a trademark, and an incredibly well known one, so it would be an uphill battle even if you were able to find something that is totally out of that area of business.
Of course, lots of companies, particularly “generic” brands, like to try to get as close as possible to a “brand name” mark, to try and associate their product with the known brand. Next time you walk down the haircare aisle at your local pharmacy, look at how similar some of the different versions of similar products look. A lot of the generic versions of a product tread a very thin line, not using the specific word or phrase, but definitely using parts of the design and overall look of the product they’re most similar to.
How Do You Get a Trademark?
In the most basic form, you get a trademark through use. If you start using a mark, then you have rights to that mark, but only in the geographic area that you’ve used it, and that can be limited to a small area (it’s not national, it’s local). Plus, if you are sued, or want to bring suit, over use of the mark you will need to show that your use came first, because you’re only protected against uses that come AFTER yours, and if you came second, you could be liable.
If you want national protection, and you want it to be easy to prove your rights to the mark, the best choice is to register your trademark by filing with the US Patent and Trademark Office.
How Do You Keep a Trademark?
The single most important thing is that you must use the mark. Remember, trademark is about consumer confusion and the differentiation of products. If you aren’t using the mark, it doesn’t serve that purpose and doesn’t get protection. That doesn’t mean you have to use it constantly, but there needs to be regular use, or it might be determined to be abandoned.
There are also reasons to protect your mark against infringers in order to maintain it. This is very different from copyright, you don’t need to protect a copyright, but you may need to protect a trademark. I won’t get into that much now, but it’s worth noting that brands that are particularly intense about defending their trademarks may be doing so to ensure that they don’t lose those rights…they aren’t always just being jerks!
