A trademark is a word, phrase, symbol, design, or any combination of therein, that identifies and links the source of goods or services as originating from a specific individual or business entity. Additionally, a trademark is a mechanism used to protect the goodwill and reputation associated with a given brand. Trademarks can take various forms, including logos, product names, slogans, or even distinctive packaging (such as the shape of the famous Coca-Cola bottle).
The Utility of Trademarks for Businesses
Trademarks provide businesses multiple advantages – the main advantage being an avenue to create and strengthen brand recognition. One essential function of a trademark is to provide a business with the exclusive right to use its mark (in the form of its company name, brand name, and/or brand logo) in connection with its goods or services. This exclusivity allows a business to build brand recognition by establishing a unique identity in the market and create trust between the brand itself and its consumer base.
The manner in which trademarks create trust is by serving as a guarantee of quality of a businesses goods and/or services. Consumers often associate a trademark with a certain level of quality, and inherently assume that they will receive that certain level of quality when purchasing those goods and/or services on a consistent basis. This helps to facilitate brand loyalty and can enhance the reputation of a business.
Common Law Trademark vs. Federally Registered Trademark
Trademark rights are provided in two forms: (1) through Common Law, and (2) through federal registration. A common law trademark is established when a word, phrase, symbol, design, or any combination therein, is actually used in commerce. The way to recognize a common law trademark is by the familiar moniker “TM” that is affixed to a brand name and/or logo (or “SM” for a Service Mark – essentially a trademark that is used in connection with a service rather than a good). As mentioned, the only requirement to obtain a common law trademark is through actual use in commerce (and not intended use). In this way, common law trademarks are easy to obtain (and are free!); however, they come with a significant limitation – geography. A common law trademark only offers protection for the mark in the geographic area in which the goods or services are engaged in commerce. Any region in the United States outside of that region is not protected. In order to minimize this significant limitation, we must consider a federally registered trademark.
A federally registered trademark provides your brand with broader protections and can be recognized by the “®” symbol. By successfully registering and receiving a trademark with the United States Patent and Trademark Office (USPTO), a business obtains exclusive rights to use the mark nationwide. Federal registration also serves as a public notice of ownership, which can: (1) deter potential infringers; (2) be used as a basis for legal action against potentially infringing parties (such as the basis for a non-frivolous demand letter and/or lawsuit). It is important to note, however, that even with the broad protections provided by federal registration, there is a difference between a federally registered trademark and an enforceable trademark (discussed in greater detail below).
Enforcing your Trademark – Remedies for Trademark Infringement
When unauthorized use of a trademark occurs, it is considered trademark infringement. Businesses invest significantly in their trademarks, making infringement a serious matter. To protect trademark owners, legal remedies are available.
Trademark infringement occurs when an unauthorized party uses a trademark (either federally registered or protected by common law) in a manner that would potentially cause confusion among consumers as to the source of a good and/or service. Remedies for infringement typically include injunctive relief, which allows the trademark owner to stop the unauthorized use of their mark immediately.
Monetary damages may also be awarded to compensate for losses incurred due to the infringement. Trademark law is designed to protect a business’s brand identity and to ensure a fidelity to the origin of goods and services in the marketplace, thereby protecting the consumer.