What is a Trademark?

A trademark helps identify your brand and sets you apart from your competitors. Many may not realize that a trademark goes far beyond just logos and brand names. Many trademarks can include features like colors, sounds, a combination of elements, and even smells that are associated with a particular brand.

Think of commercials with a sound that consistently plays at the beginning or end, which makes you think of the company name or brand from memory. You associate that sound with that brand.

Or if you’re walking through a busy shopping area and see specific colors that immediately make you think of a brand, that set of colors is likely trademarked to set the brand apart from its competitors and be a leader in the market.

Different. Distinct. Devoted.

How easily a trademark is associated with a brand depends on its strength. There are several elements you can think of off the top of your head or that you saw on the way to work this morning, and without thinking, your brain probably connected the colors, images, or sounds to the brand.

Some trademarks are suggestive, such as a logo with an outline of one of the products the company sells or the silhouette of a burger on a fast food logo.

A fanciful trademark may be the most powerful and distinct of them all. A fanciful trademark is typically a word or symbol that is directly associated with a brand, even if the item isn’t the original brand that created the product. For example, you can say, “You should Google that,” or “Grab a Kleenex,” and you can simply mean search for something or grab any tissue, but due to the popularity and strength of the trademark, those items are instinctively known across the nation and beyond.

An arbitrary trademark uses a known word but isn’t directly associated with the brand, such as Amazon or Nike.

A generic trademark has little strength in distinguishing itself from others. A word or phrase like escalator or thermos have become so common that they have lost their distinction throughout the years.

When a trademark is strong, it provides devotion from those who recognize it to the brand, helping it to stand out from competitors as the one consumers are familiar with and, therefore, may choose to buy over the competition.

Protection Through the Lanham Act

While trademarks are used to formulate a winning marketing strategy for a company’s brand and, therefore, their bottom line, they can also provide legal protection.

Once a trademark has been approved, the owner of the trademark now has legal grounds to seek repercussions against those who may infringe upon the trademarked colors, logos, and more.

The Lanham Act was enacted in 1946 and applies to protected trademarks. Those who feel their trademark has been infringed upon can cite the Lanham Act as a means of defense. The plaintiff must establish that they have a valid and legally protectable trademark in place, that they own rights to the trademark, and that the defendant unlawfully uses it, creating confusion amongst consumers.

Trademark Infringement

Punishments for trademark infringement can include an injunction, which stops the infringer from using the same trademark in the future. Taken a step further, the trademark owner can have any profits made directly from the infringed upon trademark by the competitor transferred to them should a court order as such.

Furthermore, the infringer’s products may be destroyed or forfeited as a result of a viable infringement on the trademark. Finally, the offender may be forced to pay up to three times the total profits, any damages, and attorney fees should a court deem necessary.

Common Misconceptions Regarding Trademarks

As discussed above, some common misconceptions regarding trademarks can lead to severe consequences.

One myth is that if a business owner purchases a domain name for their brand, this secures the trademark. This information is inaccurate, and the business owner must legally register the trademark should they wish to protect it and the associated brand.

Similarly, some may think that with an established trademark, the business then has exclusive rights to use the wording, colors, and more. This myth can cause frustration among business owners, but the protection typically only allows for similar use regarding the same products or services as the original brand. Others may use the trademarked information in unrelated industries and generally without repercussions.

Lastly, though you must legally register your trademark, it is up to you to determine if someone is infringing upon it and police it yourself. Although the United States Patent and Trademark Office registers trademarks, they do not monitor or enforce trademarks. It is up to the owner to monitor and take action as necessary.

Need Assistance With Your Trademark?

With a strong background as a consultant focused on small business navigation and resolution for clients, our team has vast knowledge of clients who wish to protect their brand at all costs and do so with legal protection.

What was once a smaller firm that helped smaller clients has now grown into a more extensive scope of clients, with our team going up against some of the national names such as the Environmental Protection Agency and the New York State Department of Human Rights.

This unique mix of experiences has allowed our team to consistently learn better strategies for our clients, protecting them and their livelihoods. We work with clients of all sizes and backgrounds and look forward to serving your needs as well.

Call our office today at 314-648-2586 to learn more about your questions and how we can formulate a strategy that ensures your hard work and livelihood are adequately protected.