As a business, you want your products or services to not only stand out from the crowd but also identifiable through a distinctive brand. These slogans, symbols, and designs are collectively known as a "mark," either a trademark (for products), a service mark (for service-based businesses), or a trade dress (distinctive packaging, for example). The rules for each of these types vary slightly, but generally adhere to a few basic principles. And regardless of whether it is a trademark, service mark, or trade dress, they all are defined under trademark law as administered through the U.S. Patent and Trademark Office (USPTO).
The Difference Between Trademarks and Service Marks
A trademark is a word, phrase, symbol or design, or a combination of words, phrases, symbols or designs, that identifies and distinguishes the source of the goods of one party from those of others. Common examples of well known trademarks would include Xerox, Exxon and Starbucks.
A service mark is the same as a trademark, except that it identifies and distinguishes the source of a service rather than a product. For example, a company such as Google may brand certain products with a trademark, but use a service mark on the internet searching service that it provides.
Trademarks legally conflict with each other if the use of one trademark causes confusion as to the product or service being offered, or as to the source of the products or services being offered. Generally, whoever used the trademark first owns it, and any subsequent users who cause confusion as to the products or their source will be forced to stop using the mark and may have to pay the trademark owner damages.
Trade Dress: Overview
Some brands don't just use a word, phrase or symbol to market their product, they also use distinctive packaging. A good example of this is a company such as Tiffany & Co., which uses a distinctive color and type of box to sell its jewelry. This use of distinctive packaging is what is known as "trade dress." Trade dress isn't simply limited to boxes, but can include distinctive use of color, shapes and even décor. Also, it may be possible in some instances to get legal protection for the unique look and feel of your website.
The goal of trade dress overlaps significantly with the goals of trademark law -- to identify goods or products through distinctive features and reduce customer confusion. Accordingly, trade dress can often be registered as another types of trade -- or service mark and receive protected under federal trademark laws.
How to Protect Your Mark from Infringement
Trademark protection is designed to prevent customer confusion. Accordingly, whenever someone uses a trademarked word, phrase or symbol that may cause customer confusion, the trademark owner can go to court and prevent further use of the confusing trademark. In addition to preventing other people from causing confusion, trademark owners can sue trademark infringers for damages caused by customer confusion.
See FindLaw's Trademarks section for additional articles and resources.
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