What is a trademark?
According to United States Code, a trademark is "...any word, name, symbol or device used in trade to indicate the source or origin of goods or services, and to distinguish them from the goods and services of others." Examples of current or past trademarks include:
Words
- Acme
- Xerox
- Kleenex
Symbols/Logos
Slogans
- “Good to the Last Drop”
- “Reach Out and Touch Someone”
Names
- Sara Lee
- McDonald’s
- Martha Stewart
Colors
Tiffany blue
UPS brown
John Deere green
Unlike patents, trademarks are not limited in duration. They are valid as long as the trademark continues to be used in commerce and maintenance fees are paid regularly. Similar to patents, trademarks are also administered by the United States Patent and Trademark Office (USPTO). Information about United States trademarks is found on trademarks section of the USPTO website.
International Trademarks
A registered U.S. trademark only provides exclusive legal protection in the United States. One can search for foreign registered trademarks in the World Intellectual Property Office's (WIPO) Global Brand Database.
If you intend to seek legal protection for your trademark outside of the United States, you must apply for this with foreign national intellectual property offices. This can be achieved via the Madrid Protocol of which the United States is a signatory country. It allows for the international registration of a trademark through the USPTO's Trademark Electronic Application System International (TEASi) in English rather than in the official language of each intended country.
What makes a trademark unique?
It's important to remember that not all applications are accepted by the USPTO as trademarks especially if they are merely descriptive of the product or if there is a likelihood of confusion by the general public with another existing unrelated trademark. Also, even if a trademark used in commerce is not registered with the USPTO it is considered common law usage which provides legal protection in the local geographic location where it is used.
- This best trademark to choose is one that is "inherently distinct" and will not be confused with another existing trademark for a similar product or service line.
- Strong Trademarks describes types of trademarks from strongest to weakest, i.e., those having the best chance of being registered by the USPTO to those that will be automatically refused.
- Fanciful are invented words such as Kleenex, Kodak or Xerox
- Arbitrary are existing vocabulary used in an arbitrary way such as Apple (computers) or Gap (clothes)
- Suggestive connote a characteristic of the product such as Coppertone for suntan lotion
- Descriptive merely describe how a product is, example, "creamy whip" for a whipped topping
- Generic merely signify what a product is such as "dog food" or "milk"
Searching Trademarks
All information pertaining to researching U.S. trademarks is contained on the USPTO's Searching Trademarks page. The Trademark Electronic Search System (TESS) is used to search for registered trademarks or pending trademark applications.
- The Basic Word Search can be used for strictly text-based trademarks such as names or slogans.
- The Word and/or Design Mark Search (Structured OR Free-Form) must be used if an applicant wishes to search for a logo.
- One must refer to the Design Search Code Manual to search for six-digit design codes corresponding to design elements such as "rectangle" or "sunburst" which are used to find similar or identical logos.
If you have satisfactorily conducted a search for a word or logo trademark and you have found nothing similar in the TESS database, your search is not yet over. You have simply determined that there is no registered U.S. trademark matching yours. You also need to search other resources such as the internet to determine if another similar trademark is being used in commerce. As mentioned on the introductory page there exist common law trademarks, while not registered with the USPTO, which still carry some legal precedent for the owner who can prove through documentation that they have been using the trademark longer.