A trademark or service mark is an indicator of source and symbol of quality of a particular good or service. A trademark is a brand name. A trademark or service mark includes any word, name, symbol, sound, device or any combination used or intended to be used to identify and distinguish the goods or services of one provider from those of others and to indicate the source of the goods or services. Therefore, a trademark is a valuable property right serving a dual function. As a valuable property, a trademark is inextricably linked to the goodwill of the business with which the trademark is associated. Note that a trademark is based on usage in the stream of commerce. There are four (4) types of marks distinguished by their use. They are all collectively referred to as “trademarks,” “marks” or “service marks.” The four (4) types are: trademark, service mark, certification mark and collective mark.
To be registrable, a trademark should be distinctive and performs the essential trademark function. Registrability is assessed on a scale comprising “inherently distinctive” marks at the high end, “descriptive” and “generic” at the low end with “suggestive” and “arbitrary” in the middle of the scale. An inherently distinctive mark is a fanciful mark, which is prima facie registrable because it is an entirely coined, made-up, invented, or fanciful sign. A prime example is “Xerox” or “Kodak.” Invented marks are neologisms, which would not previously have been found in a dictionary. An arbitrary trademark is usually a common word, which does not describe the product or is used in a meaningless context (e.g., “Apple” for computers). A suggestive trademark tends to indicate the nature, quality, or a characteristic of the products or services in relation to which it is used, but does not describe this characteristic. A suggestive trademark requires imagination on the part of the consumer to identify the characteristic. Suggestive marks invoke the consumer’s perceptive imagination. A descriptive mark is a term with a dictionary meaning, which is used in connection with products or services directly related to that meaning. Descriptive marks are not protectable unless the mark has acquired distinctiveness through secondary meaning, i.e., consumers can associate the name/mark with the product. Other types of marks that may be protected include abbreviations such as VW, nicknames such as COKE, slogans, scent, color, etc. However, generic marks are not protectable, e.g., chair. Misspelling of a generic term does not confer distinctiveness and therefore, the mark is not entitled to protection under U.S. trademark law.
Trademarks can be grouped to form a family of marks, which is defined as “a group of marks having a recognizable common characteristic, wherein the marks are composed and used in such a way that the public associates not only the individual marks, but the common characteristic of the family, with the trademark owner.” Perhaps the best-known and strongest trademark family is the family McDonald’s Corp. has built around its “Mc” or “Mac” surname. This trademark family includes marks such as MCDONALD’S, MCDONALD’S HAMBURGERS, EGG MCMUFFIN, MCCHICKEN, MCDONUT, CHICKEN MCNUGGETS, BIG MAC,and others.
As indicated above, the trademark indicates the source or origin of products and services thereby allowing consumers to associate the particular trademark with the nature and quality of the goods and services that the consumer is likely to purchase. As such, trademark owners have a great interest in controlling the reputation of their products and to communicate to consumers that all the goods sold under the mark are of similar in quality.
Finally, of all the intellectual property (IP) suite, trademark is somewhat different. For example, patent and copyright laws are derived from the U.S. Constitution (Art. 1, §8, cl. 8) whereas federal trademark law is predicated upon an implied power under the commerce clause of the U.S. Constitution. As a result, federal trademark law governs only trademarks used in interstate (and foreign) commerce and cannot preempt state law or common law in the trademark realm. The primary function of trademark law is to protect the consumers from the confusion and deception that would result if the use of trademark is not regulated.
Our trademark services help you register your trademark with the help of experienced attorneys at CoffyLaw, LLC. Your trademark attorney will file the trademark application on your behalf, track the progress, provide you with updates throughout the registration process, and provide trademark recommendations on the best way to protect your brand and intellectual property.
CoffyLaw, LLC has more than 80 years combined experience in trademark infringement. Our legal team includes ex-patent examiners, patent attorney, inventors, business attorneys and technical advisors in mechanical electrical engineering, and computer technology. Whether preparing patent or trademark applications, reviewing trademark applications, negotiating corporate agreements, providing guidance, and direction for compliance with IP law, litigating in court or reaching a settlement, CoffyLaw, LLC performed the full complement of trademark corporate services.
Drawing on years of experience in national and regional trademark law firms, representing a diverse client portfolio, including Fortune 500, mid-size companies, and entrepreneurs, CoffyLaw, LLC is positioned to strategically stay on top of the laws that affect our clients. CoffyLaw, LLC protects and defends your creations and inventions, preventing others from misappropriating what you have accomplished.