In essence, a trademark is a slogan, design, word, symbol or a combination of these elements that denotes and differentiates the services and goods of one particular entity from others. A number of identifiers of origin, such as trade names, certification marks, service marks, trade dress and collective marks are commonly encompassed under the generic word, trademark or trademark law.
The purpose of a trademark
A trademark is primarily meant to hinder unfair competition by attempting to prevent customer confusion, and giving the trademark’s owner various rights and remedies. Trademark usage helps to boost consumer confidence since they can be sure that they will get the products or services they expect when they buy a trademarked product or service.
When someone has used their time and money to create a certain product or service, they ought to be allowed to prevent others from using their trademark and benefitting from the originator’s investment. The strength or goodwill of the association between the trademark and its source determines its value, which is often determined by the consumer.
What are the mechanisms that are in place to protect a trademark?
When it comes to protecting a trademark, preventing infringement is the best defense. A trademark or intellectual property attorney can guide you on the steps you can take to ensure maximum protection. The preventative mechanisms that can be implemented include:
- Federal and state registration. An owner does not need to have a trademark registered to prevent others from using it or using a mark that closely resembles their own. However, there are certain legal advantages that the federal registration offers to an owner when they are in pursuit of infringers. This includes a constructive public notice that prevents anyone from claiming they had no knowledge about the mark’s existence.
- Use of notices. The use of TM, SM or R offers extra notice to the general public. After registration, the mark may bear the words Registered in U.S. Patent and Trademark Office or Reg. U.S. Pat. & Tm. Off. or a circled-R. For an entity to use these displays, the goods and services they mark should be stated in the Certificate of Registration. The use of the registration notice on unregistered goods and services is illegal. An owner can use TM or SM on any goods and services that they want to be associated with the trademark by combining it with a non-infringing trademark.
- Controlled licensing. It is legal for an owner to license their trademark(s) provided they remain in control of the form and quality of goods that carry the marks.
- Pursuing infringers. If an owner fails to take action against infringers, they may have to abandon the trademarks.
- Strong marks can claim dilution. When the act of trademark infringement does not necessarily lead to consumer confusion but blurs the distinctiveness or tarnishes the image of the owner’s mark, the mark is said to be diluted.
As with most areas of the law, the complexities of creating and protecting a trademark often require the expertise of an experienced lawyer.
