Types of Trademarks
Trademarks, service marks, certification marks, collective marks, trade dress ... Learn the difference.
What is a trademark?
A trademark is a distinctive word, phrase, logo, domain name, graphic symbol, slogan, or other device that is used to identify the source of a product and to distinguish a manufacturer's or merchant's products from others. Some examples are Nike for sports apparel, Gatorade for beverages, and Microsoft for software.
Consumers often make their purchasing choices on the basis of recognizable trademarks (sometimes referred to simply as "marks"). For this reason, the main thrust of trademark law is to make sure that trademarks don't overlap in a manner that causes customers to become confused about the source of a product.
If two similar trademarks are being used by companies that provide different products or services, there may not be a trademark conflict. This is especially true if the two businesses serve only local markets and are hundreds of miles apart.
However, in the case of trademarks that have become famous -- for example, McDonald's -- the courts are willing to grant much broader protection and prohibit almost all use of the trademark (or anything close to it) by anyone other than the famous mark's owner. For instance, McDonald's was able to prevent the use of the mark McSleep by a motel chain because McSleep traded on the McDonald's reputation for a particular type of service (quick, inexpensive, standardized). This type of sweeping protection is authorized by federal and state statutes (referred to as anti-dilution laws) designed to prevent the weakening of a famous mark's reputation for quality.
In order to be eligible for trademark protection, a word or phrase must be "distinctive" -- unique enough to help customers recognize a particular product in the marketplace -- rather than generic, like "The Coffee House." A mark may either be inherently distinctive (the mark is unusual in and of itself, such as Diesel fashions) or may become distinctive over time because customers come to associate the mark with the product or service (for example, McDonald's restaurants). For more information, see Qualifying for Trademark Protection FAQ.
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