WHAT IS A TRADEMARK?
A trademark is any word, name, symbol, sound, color, smell, or device that is used to identify and distinguish the products of a person or company. Most readily recognized traditional forms of trademarks are product names and logos, which the purchasing public often refers to as the “brand” of that product. The term “service mark” is used for a mark that is used to identify and distinguish the services provided by a person or company, such as restaurant or banking services, as opposed to a physical product. The term “trademark” is often used to broadly encompass service marks as well as traditional trademarks.
TRADE NAMES AND COMPANY NAMES.
A trade name can be the legal name of a company or may be a name under which it does business even though not actually incorporated under that name. For reasons that are primarily historical, trade names themselves are not federally registered, although may be registered by states. This does not mean that trade names fall outside the realm of trademark protection. A company name is quite often federally registrable as a service mark for services that the company provides. If the company name is also used as a trademark for products, that name can be federally registered as a trademark for those goods. Regardless, trade names are traditionally protected under state and common law unfair competition laws. The manner in which a trade name is used on products or their packaging quite often will dictate whether it will be considered a trademark protected under federal law or a trade name protected under the common law.
WHAT CAN BE A TRADEMARK?
Anything that identifies your company’s products and services and distinguishes them from the products and services of other companies can potentially be a trademark. The two most common are words that serve as brands and logos that include some type of pictorial design. The proper subject matter for trademarks includes much more than these, however, and may include slogans, letter acronyms, unique color combinations, container shapes and packaging features, configurations of products themselves, sounds, and scents. Even this list is not exhaustive. If there is some indicia that your company uses to uniquely identify its products or services, it has the potential of being a protectable trademark.
It is more difficult to obtain protection from some types of identifiers compared to others. For example, various color combinations or patterns have long been recognized as being a protectable trademark. More recently, protection has been extended to the use of a single unique color for a product, but establishing that a single product color merits protection for exclusive use by one company remains more difficult than establishing rights to other types of marks. Similarly, the exterior visual design or shape of a product or piece of equipment, or at least the nonfunctional features of that shape, can be established in the right circumstances as a trademark for that product. Establishing trademark rights in the shape of a product itself is normally more difficult than establishing rights in a unique packaging design, for example. Under the right circumstances, however, these can represent extremely valuable proprietary rights of a company.
If you have questions about trademarks, contact our Michigan IP attorneys today at (616) 975-5500.