A trademark can be almost anything as long as it helps the consumer identify with the particular product or service. It can be a word, phrase, symbol, image, sound, device, or even color. Examples include such marks as the Nike “swoosh,” the NBC three-toned chime “G E C,” and the distinctive shape of a Coca-Cola bottle.
What is the purpose of trademark law?
The purpose of trademark law is twofold: first, it is to aid the consumer in differentiating among competing products and second, it is to protect the producer’s investment in reputation. The U.S. Supreme Court summed up this purpose nicely in 1995 in the case of Qualitex Co. v. Jacobson Products Co.:
“[T]rademark law, by preventing others from copying a source-identifying mark, ‘reduce[s] the customer’s cost’s of shopping and making purchasing decisions,’ for it quickly and easily assures a potential customer that … the item with this mark … is made by the same producer as other similarly marked items that he or she liked (or disliked) in the past. At the same time, the law helps assure a producer that it (and not an imitating competitor) will reap the financial, reputation related rewards associated with a desirable product.”
What do trademarks protect?
The heart of trademark protection revolves around protecting consumers from being mislead. Imparting source and producer identifying cues, a trademark provides the consumer with the means to make judgments concerning the goods before sampling them. For example, when a consumer sees a Mercedes-Benz automobile, the trademark name “Mercedes-Benz” conveys a level of quality regarding the automobile.
What type of protection is given to trademarks?
Trademark protection is not one size fits all but instead the protection is distributed across a scale of four levels with level four receiving the highest protection. The degree of protection is generally correlated to the degree of distinctiveness.
- Generic – generic or common descriptions receive no protection under the law of trademarks.
- Descriptive – descriptive terms, because they are not inherently distinctive, are not generally given trademark protection unless a secondary meaning due to the public association of the mark with the holder’s product or service can be proven. Such secondary meanings can be found when a significant number of consumers and other companies associate the mark with the specific product or service.
- Suggestive – suggestive terms automatically receive protection even when there is no secondary meaning if the term implies something without actually describing it.
- Arbitrary or fanciful – arbitrary and fanciful terms are closely related in that they both are inherently distinctive and receive the highest degree of protection. Arbitrary marks have real words that are meaningless with respect to the product or service while fanciful marks are completely made up words.
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