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Trademarks are distinctive symbols, pictures, or words (or a combination of any or all of these) that uniquely identify and/or distinguish a product on the market.

Trademarks may also, in certain instances, be granted to such things as unique packaging (the distinctive shape of a Coca-Cola® bottle, for example), unique color combinations, unique product styles, or even unique building designs.

Trademark status may also be assigned to products not necessarily unique but still identified with a particular seller in such an indelible way that it develops a uniqueness in and of itself (anyone can sell fried chicken, for example, but only Kentucky Fried Chicken can identify their chicken with the “KFC” label).

(Service marks are the legal equivalent to trademarks only they apply to services rather than products.)

Whoever owns a trademark has the exclusive right to use or otherwise exploit it in regards to the product to which it applies.


Protections and Limitations

In the US, trademarks may be protected either by Federal law, by state law, or by common law (or, again, a combination of any or all of these). In most cases, federal law will trump any state statues should a conflict arise between the two.

Trademarks don't need to be officially registered to be protected but “common law” (or fair usage) marks don't have all of the same enforcement protections provided to those trademarks registered by the US federal government (through the US Patent and Trademark Office) or through state agencies.

Trademarks must be maintained through proper use by the owner, prevention of improper use by others, and maintenance of up-to-date usage declarations (or affidavits giving valid reasons why the trademark isn't actively being used) and application renewals. Only through proper diligence may trademarks be maintained and remain enforceable in the court system.

Trademarks that are allowed to become abandoned—that is, not property maintained and protected intentionally or unintentionally—may be forever lost and the identifying mark may become a generic one freely available to anyone to use legally (as happened to once-protected trademarks like “shredded wheat”, “trampoline”, “zipper”, and “escalator”).

Trademark Law

On the federal level, trademark law for the United States is administered by the US Patent and Trademark Office (USPTO). A properly maintained trademark can remain enforceable “forever” as long as renewed applications are filed every 10 years with the USPTO. Each state has its own statutes and trademark offices. International trademarks are subject to the laws of various countries on a case by case basis.

By Michael Willis           


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