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What is a Trademark?

The Lanham Act, which is the set of U.S. laws related to trademarks, defines the term “trademark” as a word, name, symbol, device, or any combination thereof used by a person to identify and distinguish his or her goods from those manufactured or sold by others and also to indicate the source of the goods.

While trademarks identify “goods” – usually, tangible products – service marks identify services. In many cases trademarks and service marks are interchangeably referred to as trademarks, or simply marks.

Here are some trademarks that very well known across the globe: Coca-Cola carbonated beverages, Honda automobiles, UPS package delivery services.

Naturally, trademarks are also well known in cyberspace. Ebay identifies online auction services, Yahoo identifies directory services, EarthLink identifies Internet access services, BlackBerry identifies a handheld device for accessing e-mail, and so on and so forth.

In addition to words, a symbol can also function as a trademark. Some very popular trademark symbols are the Microsoft window-pane logo, Apple Computer’s one-bite-taken fruit, AOL triangle.

“Trade dress” is similar to trademarks and refers to the overall appearance of a product. Some high-tech product designs are protected by trade dress law. One example for this is Apple Computers, who have asserted trade dress rights in the design of the iMac computer. Many other popular overall product appearances probably serve to identify and distinguish the products, qualifying them for trade dress protection, e.g. Sony VAIO series of laptops.

Not every word, name, symbol, or device can function as a trademark. Some words, names, symbols, or devices are stronger than others. Generally, the trademarks have been described as falling into the following categories, listed in decreasing level of strength:

  1. Arbitrary or fanciful. Fanciful trademarks are those that have been made up, such as newly coined words. Examples include Xircom, Avaya, Lucent, Equant, Intel, etc. Arbitrary marks are those that in no way describe the goods or services with which they are used. For example, Google for search services, Egghead for electronic sales, eBay for online auctions, Apple for computers, etc. Arbitrary and fanciful trademarks are very strong, but they usually require considerable amounts of money to create an adequate association in the public’s mind between the mark and the goods/services.
  2. Suggestive. Suggestive trademarks are those that indirectly describe the goods or services they identify, e.g. WinBook for notebook computers running the Windows OS.
  3. Descriptive. Descriptive trademarks are those that describe the goods or services they identify. Examples include The Weather Channel for information about the weather; Travelocity for travel services; MapQuest for mapping services. Descriptive trademarks are not entitled to registration as federal trademarks without what lawyers call “secondary meaning”, that is, whether the relevant audience has created an association between the trademark and the good and services with which the mark is used.
  4. Generic. A generic term is the name of a particular good or service, such as “personal computer”, “cell phone”, “modem”, or “e-book”. Generic terms are not entitled to trademark protection and therefore can be used by anyone. As a judge wrote in March 2002 in the case Microsoft vs., a trademark dispute over the names used by two software companies that raised the question of whether the mark “Windows” is generic for a graphical computer OS:

“When a trademark’s primary significance is to describe the type of product rather than the producer or source, the mark is a generic term.”

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