Updated: Jan 5, 2021
PART 1 OF 6
What is a trademark?
A trademark is any word, symbol, logo, color, sound, scent, three-dimensional design, hologram or other representations, that identifies the source of your goods or services as originating from your business.
A trademark is a “brand” in that it identifies your business’ goods and services as being sourced from your business - similar to the idea of branding livestock to identify the rightful owner. A trademark used properly identifies the quality of the goods and services associated with the brand.
For example, the Nike trademarks, both the word “NIKE” and the swoosh logo, identifies the source of Nike branded apparel as having the quality of Nike goods and coming from Nike the company, and not from any other apparel company.
What is not a trademark?
A trademark is not a patent. A patent registration protects inventions or new and useful improvements of a process, machine, manufacture or composition of matter, and it is not associated with the branding of goods or services.
A trademark is not a copyright. A copyright protects certain types of original ideas or “works”, such as writings, works of art (paintings, sculptures), music, photography, and even original software coding. Specifically, copyright law protects an owner’s right to control the reproduction, publication, and other types of use of the original created work.
A trademark is not a domain name. A domain name is a string of letters, words or numbers that is associated with a particular Internet Protocol resource, often a website.
A trademark is not a trade name. A trade name is the legal name of a business (such as “doing business as” or the corporate name), which is not necessarily a trademark. However, a trademark is often associated with the trade name of the business.
At the root of trademark law is the idea of consumer protection in that registration of a trademark is intended to protect the end consumer by knowing that the goods or services are coming from the same source every time they are purchased. The trademark owner of a registered mark benefits secondarily, in that no one else is permitted to use the same or a similar mark in connection with the same, or similar, types of goods or services as the registered trademark owner's.
The premise of exclusivity for the use of a registered mark stems from then concern that the use of a similar mark to a registered mark could cause confusion in the minds of the consumer with respect to the source of those goods or services. Accordingly, one of the grounds for the refusal of registration of a mark is based on similarity or confusion with a registered mark.
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