A trademark is a word, name, symbol, logo, or device that is used to identify a certain good. The purpose of a trademark is to distinguish the goods with the trademark from other goods which may be competing for market shares. In most circumstances, trademarks can become protected from infringements.
When Can a Trademark be Protected?
In order for a trademark to be protected, that trademark must be:
- Registered with the United States Patent and Trademark Office,
- Attached to a product sold in the market place, and
- Be appropriately distinctive.
What Are the Levels of Distinctiveness for Trademarks?
Trademarks can be broken down into five distinctive groups. In order for the trademark to be protected, it must fall into one of the last three classifications. The first two classifications provide no trademark protection. The classifications for trademark distinctiveness are:
Generic trademarks are not given trademark protections. Generic trademarks are those that use words, names, symbols, logos, or devices that are of common usage in distinguishing the product to which they are attached. An example would be using the word "Fruit" as a trademark for an apple. "Fruit" would not be trademark protected because it is of common usage and only explains the category that an apple would fall within.
Along with generic trademarks, descriptive trademarks are not given trademark protection. Descriptive trademarks are those that use words, names, symbols, logos, or devices that are of common usage to describe the product to which they are attached. An example would be using the word "Fax" as part of a brand name home communication system. "Fax" is a commonly used word, and its use to describe a communication system would not be trademark protected.
The suggestive trademark distinctive classification is a very gray area. Trademarks that are suggestive are still given trademark protection, but it is very difficult to distinguish them from descriptive trademarks. The main difference is that suggestive trademarks require a consumer to use their imagination to draw a conclusion about the nature of the product, rather than having its name, symbol, or logo explain everything.
Arbitrary trademarks are very similar to fanciful trademarks. The main difference would be the word, name, symbol, logo, or device used to distinguish the goods can also be used to describe something else. Arbitrary trademarks are still given trademark protections. An example would be a "polo player" logo on a shirt. A polo player can be used in the description of the sport of polo, but its connection with a shirt makes it distinctive enough to receive trademark protection.
Trademarks that are within the fanciful distinctive category are generally the most unique trademarks. They are words, names, symbols, logos, or devices that were made-up or coined exclusively for the product they are attached to. Fanciful trademarks are provided the highest level of trademark protection. An example of a fanciful trademark would be iPod, because it can describe no other device, and it was a word coined for the distinction on one product.
Do I Need an Attorney?
If you believe your trademark has been infringed upon, or you are being sued for infringing on another's trademark, it is highly recommended for you to contact an intellectual property attorney because of the complexity of the issue. Only an attorney will be able to distinguish the trademark, explain the relevant issues, and help to defend your rights.