In basic terms, the definition of a trademark is a mark, design, logo, word, phrase, or something similar that identifies the commercial source of a product or service. “Commercial source” is just a general term that means the manufacturer or grower of a product or the provider of a service. Take, for example, the famous golden arched “M” owned and used by McDonald’s. If you see the “golden arches” on a cup containing a beverage — like coffee or soda pop — you, a consumer, know that the commercial source of that beverage is McDonald’s. This is also true for various trademarks that adorn cars, trucks, and vehicles that identify the vehicle manufacturer as Ford, Chevy, Mercedes, or Rolls Royce. If you need help creating, protecting, or registering a trademark, you will need the legal assistance of deeply knowledgeable trademark lawyers like the ones at Revision Legal. Call us at 231-714-0100 or 855-473-8474. Below is more detail on how a trademark is defined and how it functions.

From the above definition, additional details can be understood. First, as noted, there is a specific type of information that is being conveyed by a trademark — the commercial source for a product or service. This is why not every mark, design, logo, or word/phrase is a trademark. Thus, without more, phrases like “Be Brave” or “Stay Safe” are not trademarks. Such phrases convey meaning but, without more, do not “connect up” to a product or service. To turn aspirational and informational phrases into a trademark, a company must promote the phrase as connected to a product. This takes some time — two or three years (or more). A good example here is Nike’s phrase, “Just Do It.” By itself, that is not a trademark. However, Nike spent a lot of time and effort in advertising and promotion to “connect up” that phrase to Nike products. As time passed, the phrase became associated with Nike’s products and is now recognized — in the minds of consumers — as a trademark.

Also, from the above, we can see that a trademark has a specific audience — consumers, customers, patients, buyers, users, etc. This is another reason that, without more, phrases like “Be Brave” are not trademarks. Such phrases are aimed at everyone generally, not just potential buyers and consumers of a given product or service. Thus, to determine whether a trademark is sufficiently associated — connected up — to a product/service, the test is whether that association exists in the minds of consumers.

In addition, trademarks are about commerce — the manufacture and sale of goods and services. In this manner, trademarks are distinguished from other types of symbols, like national and state flags, religious symbols, etc. Those types of symbols certainly have associations in the minds of everyone but generally, nations, states, and churches are not selling goods and services. So, those symbols are not legally considered trademarks. Of course, nations and states can come to be known for certain types of products/services that are sold commercially. Examples here are Scotch whisky, Idaho potatoes, Michigan apples, etc. Under certain restrictions, the use of a nation’s or state’s name or its geographic shape can be used as part of a trademark since those are associated with the sale of some product/service.

Contact A Trademark Attorney at Revision Legal

For more information, contact the trusted trademark lawyers at Revision Legal. You can contact us through the form on this page or call (855) 473-8474. We also prosecute and defend trademark infringement litigation.

The Spectrum of Trademark Distinctiveness

Not all trademarks are created equal. Courts and the USPTO evaluate distinctiveness along a spectrum first articulated by Judge Henry Friendly in Abercrombie & Fitch Co. v. Hunting World, Inc., 537 F.2d 4 (2d Cir. 1976). At the strongest end of the spectrum are fanciful marks — invented words with no meaning other than as a brand identifier. KODAK and XEROX are classic examples. Next come arbitrary marks — real words that have no connection to the goods or services they identify, such as APPLE for computers. These are inherently distinctive and immediately registrable.

Suggestive marks hint at a characteristic of the goods without describing them directly — for example, NETFLIX suggests streaming but does not describe it. Suggestive marks are also inherently distinctive and registrable. Descriptive marks directly describe a quality, feature, or characteristic of the goods or services. As discussed in the existing content, descriptive marks are not inherently distinctive — they require proof of acquired distinctiveness (secondary meaning) before they can be registered on the Principal Register. Generic terms — the common name of the goods themselves — are never registrable as trademarks. Calling your beer brand “Beer” would be an attempt to register a generic term.

How Trademarks Are Lost

Trademark rights, unlike copyright, are not self-perpetuating. A trademark can be lost in several ways, and understanding these risks is part of why trademark law matters to businesses. Genericide occurs when a trademark becomes so associated with a general category of products that it loses its distinctiveness as a brand identifier. ESCALATOR, ASPIRIN, and THERMOS were all once trademarks that became generic through improper use. To avoid genericide, trademark owners must police how their marks are used — the trademark should always be used as an adjective modifying a noun (XEROX photocopier, not “make a xerox”), never as a verb or generic noun.

Abandonment is another ground for losing trademark rights. Under 15 U.S.C. § 1127, a trademark is considered abandoned when its use has been discontinued with intent not to resume use. Three consecutive years of non-use creates a rebuttable presumption of abandonment. Naked licensing — allowing licensees to use the mark without maintaining adequate quality control — can also result in loss of trademark rights because the mark no longer reliably identifies a single commercial source with consistent quality.

Trademark vs. Trade Dress vs. Service Mark

The trademark system covers several overlapping categories of commercial identifiers. A traditional trademark identifies goods. A service mark identifies services — the same legal protections apply, but the term “service mark” is technically more accurate for service-based businesses. Both are commonly called “trademarks” in practice, and the USPTO registers both.

Trade dress refers to the overall commercial image of a product or business — the shape, color, packaging, and design elements that consumers associate with a source. The trade dress of the Coca-Cola bottle, the distinctive red soles of Christian Louboutin shoes, and the interior layout of an Apple Store have all been protected as trade dress. Trade dress can be registered with the USPTO or protected under common law, but the standard for trade dress protection is demanding — the trade dress must be non-functional and must have acquired secondary meaning (unless it is inherently distinctive). A trademark attorney can evaluate whether your product’s appearance or business’s interior design qualifies for trade dress protection and advise on the best strategy for securing and enforcing those rights.