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Trademarks are:

• Names
• Logos
• Designs
• Emblems
• Other identifying marks distinguishing goods or services
• Distinctive sounds and smells

To be a trademark, the mark must be identified in the minds of consumers with a particular source of a good or service.

A primary goal of trademark law is to protect consumers. If competing businesses use identical or similar marks, consumers may be confused as to which business they are dealing with or purchasing from. Consumer confusion could be a particular problem if a consumer believes he or she has purchased goods of a certain quality, but mistakenly receives goods of a lesser quality.

Trademark law discourages business fraud in which a dishonest business intentionally tries to "pass off" its goods as those of another. If lower quality goods are passed off as those of a known business, consumers may be angry or dissatisfied and blame that business by mistake, damaging its reputation.

Kinds of Trademarks

Trademarks come in different strengths, or levels of protectability. From least protectable to most protectable, the classes of trademarks are: Generic Marks

The generic mark tells consumers the name of the type of product, rather than the particular brand. "Dinner Rolls" might be a generic label for bread products. Generic marks aren't protected because they don't convey the source of the product, only the type of product.

Legitimate trademarks may become generic by being too successful. If a trademark becomes a "household word" used to refer to the type of good, it may become generic and the owner will lose trademark rights in that word.

The English language is littered with former trademarks that have entered the language through overuse. Examples include "aspirin," "escalator," "elevator" and many others.

Descriptive Marks

A different name, such as "Fluffy Dinner Rolls" might be considered a descriptive mark, as the label now describes some characteristic of the product. Descriptive marks are not protected unless they gain "secondary meaning" through long usage.

Secondary meaning is the legal term used when the descriptive mark has been associated with a particular brand for so long that the public associates the mark with that brand, rather than reading it as a description of the product. When this occurs, the owner can claim trademark rights.

Suggestive Marks

"Featherlite" might be a suggestive name for the product. Consumers might connect the name with a characteristic of the product, but doing so requires some thought.

Arbitrary or Fanciful Marks

"Butterfly rolls" would be a fanciful trademark. A mark like "Grexx" rolls would be arbitrary, as there is no such word in the language and the name is made up solely to refer to the rolls.

Suggestive, arbitrary, or fanciful trademarks are presumed to have secondary meaning. Unlike generic or descriptive marks, the choices are unlimited for suggestive, arbitrary or fanciful marks, so every producer can have one.

Acquisition of Trademark Rights

Trademark rights are usually judged on a priority basis. The first person to use a mark has a superior claim to use of that mark. Most states have trademark protection laws and simple procedures for registering a trademark. State registration is usually only effective within that state and not effective for businesses engaged in multi-state operations. The federal registration process is more complex and somewhat resembles the application process for a patent:

• An examiner at the United States Trademark Office reviews the application for federal registration.
• The examiner conducts a search to see if another company has already registered the trademark, or a similar trademark.
• Once the examiner approves the application, it is published nationally as notice of the registration.

Related Resources on Lawyers.com^sm

- Trademark Application Worksheet (Installation Required)
- Release for Use of Likeness
- Trademark Violation Letter
- Intellectual Property Message Board for more help