Business, Legal & Accounting Glossary
A registered distinctive name, image, and/or logo that represents a product, and which is generally found on the product itself, and the packaging. Use of the trademark is controlled by the trademark owner, who has legal protections at both national and international levels.
A symbol, word, or words legally registered or established by use as representing a company or product.
A word, phrase, logo, symbol, color, sound or smell used by a business to identify a product and distinguish it from those of its competitors. If the business uses the name or logo to identify a service, such as photocopying, it is called a service mark. In practice, the legal protections for trademarks and service marks are identical.
Trademarks are the brand names and symbols used by businesses to identify themselves and/or their products or services. The trademarks can be registered with the US government to prevent use by others. A trademark is considered intellectual property.
Some like Coca-Cola are very valuable and have been used for over a century. Others like aspirin have become generic and are no longer trademarks.
To reduce the risk that a trademark might be declared generic, experts recommend that the trademark always be used as an adjective; never as a noun. Hence, “Kleenex tissues” is preferred over “Kleenex.”
The Macintosh trademark is the image of an apple with a bite taken out of it.
The process of securing a trademark can be a lengthy one because all applications go through the same government agency.
Generally speaking, a trademark is a distinctive word, symbol, or picture that a seller of goods or services affixes to distinguish its products from those of others.
It legally identifies a company or its products and services, and sometimes prevents others from using identical or similar marks. Product designs, product packaging, product color, and overall product presentation can achieve trademark status under certain circumstances–such status is referred to as trade dress.
The owner of a trademark has exclusive right to use it on the product it was intended to identify and often on related products. The term Service Mark refers to a mark that identifies a service rather than a good, although the term trademark is often used to refer to both service marks and trademarks.
The three doctrines of trademark, patent, and copyright are related, and often confused. Briefly, copyright protection extends to the expression of an original idea fixed in a tangible form, such as a novel or a painting, and patent protection extends to an original functional invention, such as a new light bulb, or an original product design, such as a new basketball sneaker. An example will illustrate the differences: Fred’s Burgers has 10 restaurants nationwide. They use a special grill of Fred’s original design which cooks food very fast and saves power. The burgers are wrapped in wax paper with a cartoon of Fred’s face. “Fred’s Burgers” will likely be a valid trademark; Fred’s special grill may be patentable; The wax paper wrapper may be a copyrightable design.
The symbol ® means that a mark is a registered mark, and should be applied only to marks that have received U. S. trademark registration. The symbol ™ means that the user is claiming rights in the mark, but that the mark is not yet registered. These symbols should always appear near your marks.
Trademark rights are granted to whoever uses their trademark in commerce first. Often, two users will be using marks that are not exactly the same, but bear some similarity to each other. If the marks are not exact, as, in the case of Evolution and Revolution, the matter is resolved by asking “is there a likelihood of confusion between the marks? Of course, the primary factor is the similarity between the marks, but a tribunal may consider other factors in answering the likelihood of confusion inquiry. For example, what is the proximity of the goods, i.e., is one user selling paint, and the other handbags? A lack of proximity between the goods makes confusion less likely. And, is one user a wholesaler, and one a retailer? Dissimilarity in the channels of commerce makes confusion less likely.
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This glossary post was last updated: 28th November, 2021 | 0 Views.