Broadly speaking, a trademark is a specific “thing” and also a set of legal rights. As a “thing,” a trademark is something in particular — like words, marks, color, a design/logo — that is used as an indication of the commercial source of goods or services. By definition, trademarks do not exist “free-floating” out there without a connection to a product or service. Thus, trademarks must be located on a product, on packaging for products or services, on or in advertising, on an instruction book, on a website page, etc. Further, other than scalability, a trademark must be used the same each time. That is, a trademark is unchangeable — if the composition of the trademark is changed, the result is to create a new trademark.
A trademark is created specifically for this identification purpose and relates to a commercial purpose. Legally, a trademark is only for commercial use. If a trademark owner stops using a trademark “in commerce,” then the trademark will lapse and lose its legal protection. In effect, this will allow a competitor to use the trademark in commerce. The word “trademark” broadly covers trademarks used for both goods and services, but the term “service mark” is often used more narrowly for trademarks related to commercial provision of services. Note further that the word “commercial” does not refer exclusively to products and services that are offered for sale. Not-for-profit organizations may provide goods and services free of charge and such would still be providing goods and services “in commerce” for purposes of creating and using trademarks.
As noted, trademarks are made from various elements. For example, trademarks can exclusively contain words or numbers which then are called word marks — that is, a trademark which is made up of letters, words, phrases, and/or numbers. In today’s marketplace, it is rare to see a trademark that has no letters, words or numbers (although there are many such as the Nike “swoosh” symbol). Another element of trademarks is design. This can include stylization of letters and words plus anything imaginable as an image. Color can also be used as an element of a trademark and, in some cases, a color itself can be the trademark (such as Owens Corning’s pink for its building construction insulation). Sounds can also be trademarked as for movie and television production companies. Sound marks are usually created — such as a few musical notes — but can also be “natural” sounds — like the “roaring lion” sound for MGM movies. Moving images can also be used as a trademark.
As long as a trademark is used in commerce, a trademark can exist indefinitely. Some trademarks have been in use for hundreds of years.
In terms of legal rights, a trademark is a protected property right. Like real property — land — trademark legal rights include the right to exclude others. That is, trademarks allow the owner to exclude others from using the trademark (or any trademark that might be “confusingly similar”). An infringement against a trademark is like a trespass to land. Trademark infringement allows the owner to sue in court for damages from that infringement.
Contact the Trademark Attorneys at Revision Legal
For more information, contact the experienced Trademark Lawyers at Revision Legal. You can contact us through the form on this page or call (855) 473-8474.
