A trademark is a way (e.g., a name, symbol, color, shape, sound, device, or any combination of these) to identify the source of goods and/or services. Trademarks allow a consumer to repeat a good experience or avoid a bad experience with a firm’s products.
Therefore, as a matter of public policy, the law allows someone who has invested goodwill (i.e., offering a product or service with better quality) to receive exclusive rights in order to receive patronage (i.e., repeat customers). A trademark, once federally registered, lasts for 10 years, and is continuously renewable (as long as the mark is being used) and allows the owner to use the “r in the circle” symbol, ®, along with the mark.
The owner of a trademark can exploit it by suing any party who uses the exact mark without permission or uses a confusingly similar mark. A court, upon finding infringement or likelihood of confusion, may award monetary damages, order an injunction and/or grant attorneys’ fees and costs.
In order to receive a federally registered trademark, one must file an application with the U.S. Patent and Trademark Office and show that: (1) they are using or planning to use the mark in interstate commerce; (2) they have affixed the mark to the goods or used it in advertisements to identify services; and (3) the mark is distinctive.
Examples of distinctive marks include those that are fanciful (e.g., Kodak® film), arbitrary (e.g., Four Roses® whiskey) or suggestive (e.g., Coppertone® sun tan oil) and those not similarly confusing with someone else’s mark. For those not engaged in interstate commerce, many states offer local trademark protection which allows the mark’s owner to put others on notice by use of the common law trademark symbol, ™.
The trademark registration process, in comparison to the long patenting process measured in tens of thousands of dollars, is relatively quick and cheap measured in the thousands of dollars range.
