How Do Trademarks Work? Trademarks 101
Why Intellectual Property Is Important
In today’s marketplace, intellectual property is an incredibly important asset. In fact, for some businesses, its entire value rests in the ownership of its intellectual property (“IP.”) And, if these businesses lost the right to use their IP exclusively or to prevent others from using it without paying royalties, they’d effectively be worthless.
So, what is intellectual property exactly?
Black’s Law Dictionary defines intellectual property as “a commercially valuable product of the human intellect, in a concrete or abstract form, such as a copyrightable work, a protectable trademark, a patentable invention, or a trade secret.”
This is a good legal definition, it explains the four main categories of intellectual property (i.e. copyrights, trademarks, trade secrets, and patents) and one of the core requirements for protection for two of these categories (being commercially valuable, which is essential for trademarks and trade secrets) without getting too into the weeds.
What Trademark Means
Now, not every business has all four categories of IP. For example, your favorite mom-&-pop restaurant probably doesn’t use any patentable technology. But almost all businesses have one type of IP, and that is a trademark. The purpose of a trademark is to identify the source of the goods. Put differently, it’s a way for consumers to figure out who made the product or delivered the services they’ve purchased or are looking to purchase.
A trademark can be almost anything as long as it identifies the source of the products or services. For example:
The phrase “I’m lovin, it” is trademarked by McDonalds.
The shade of blue Tiffany & Co uses on its packaging, called Tiffany Blue, is also a trademark.
What Cannot Be Trademarked
However, there are some restrictions. A trademark cannot be functional, generic, or merely ornamental.
Functionality
A mark is “functional” if it is a part of delivering the good or service. For example, let’s say you have a soft drink company and sell soda in glass bottles. You would not be able to trademark the use of glass bottles to sell soda because the glass bottle is essential to selling the soda.
Now, Coca-Cola has a trademark on the “fluted shape” of its glass bottles.
Coca-Cola also cannot stop its competitors from selling soda in glass bottles.
But the trademark registration allows it to stop its competitors from using glass bottles with the “fluted shape” to sell their sodas.
Genericness
A mark is “generic” if it identifies the product instead of the source of the product. For example, if you owned a bakery that only sold bread. You will not be able to trademark the word “bread” in connection with your products. This is because other bread makers should be allowed to use the name of the product to sell said product.
Now, you can get a trademark that includes the name of your product, but you must disclaim the exclusive right to use that word.
You can trademark the name of a product if it is not being used to describe the product but instead identifies the source of the product.
An example of this is Apple and its electronic products. The word “apple” is the name of a product (i.e. the fruit) but it does not, or in the past, did not have any meaning in connection with electronics.
When Apple Inc. started using the word “apple” in conjunction with its electronic products, it acquired a new meaning thorough Apple Inc.’s activities. This is why Apple Inc. can have a trademark on just the word “apple” but an apple farmer who sold the fruit as a product could not.
Merely Ornamental
A mark is “merely ornamental” if it is decorative and does not identify the source of goods or services. An example of this would be a design on a piece of clothing. If the design is only used on one piece of clothing or it’s a large part of the garment, it’s probably there as decoration and not the identify the producer of the garment.
For example, a t-shirt featuring a large graphic of a crocodile would probably be considered merely ornamental (i.e. it’s a shirt with a picture of a crocodile on it,) if the crocodile graphic was not used in other pieces of clothing by the same brand or did not signal who the maker of the shirt was to consumers; while the crocodile logo on a tennis shirt made by Lacoste would not be considered merely ornamental. (Lacoste made that shirt. I can tell by the logo [i.e. the crocodile].)
Why Protect Your Trademarks?
A trademark is a way for consumers to identify your business as the source of the products and services it sells. As a result, it’s connected to the concept of goodwill or your business’ reputation.
Think about that one brand or store, we all have one, where you had a bad experience. You probably think about that experience when you hear its name or see its logo. And you’ve probably not gone back.
Conversely, we all have brands or stores that conjure up positive memories and associations when we see or hear about them. And odds are you’ll go there, even if it’s more expensive than other options.
That’s the power of a trademark. And it’s why you need to protect your trademarks. It’s the reputation you’ve built from the ground up. Others shouldn’t be able to leverage your hard work by using it without your permission and they shouldn’t be able to ruin it.
To quote Robert Greene’s 48 Laws of Power “Law 5: So Much Depends on Reputation – Guard It With Your Life.”
Tell TealAcre to Tackle the Task
This was just a cursory introduction to trademarks. There’s much much more to it than this, but if your want to learn more, connect with TealAcre. To contact us you can:
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