What are Trademarks?

By Rudman Winchell Attorney Anthony D. Pellegrini

A trademark is a word, symbol, or a combination of words and symbols that identifies the owner or producer of goods that are marked with that trademark.  A service mark is a word, symbol, or a combination of words and symbols that identifies the owner or provider of services that are associated with that service mark.  (Because trademarks and service marks are generally treated the same under Trademark Law, only trademarks will be discussed hereafter.)  Examples of trademarks are the “Golden Arches”, which identifies certain restaurants as being owned or franchised by the McDonald’s corporation; the “Swoosh”, which identifies footwear and clothing as being manufactured and sold by Nike; and the words “Coca-Cola”, which identifies beverages produced and sold by the Coca-Cola Company.

Trademarks exist through use.  That use has to be in “trade”, which means used in some sort of business endeavor.  It can be a for-profit business or a not-for-profit business, but it cannot exist apart from that type of use.  So, a name that you use for a pickup softball team is not a trademark.  If your team sells tickets to its games, though, the team name might become its trademark. 

A trademark is protected where it is used.  Some trademarks are limited to a very small geographical area.  A local pizza parlor’s name might be well known only in the town it is located in and maybe a few surrounding towns; its name can be protected as a trademark only in those places.  The name of a national pizza restaurant chain, on the other hand, may be protected as a trademark everywhere. 

Because trademark rights exist through use alone, you do not need to apply to the government for a trademark.  However, trademarks can be registered by state governments or the federal government.  A trademark registration issued by the government does not create the trademark, but rather expands its geographic scope.  Thus, that local pizza parlor could obtain a state trademark registration, and its name would then be protected as a trademark everywhere in that state, even hundreds of miles away.  The national pizza restaurant chain could obtain a federal trademark registration, and its name would then be protected as a trademark throughout the United States and all of its territories, even if the chain does not have restaurants in some states. 

Federal trademark registrations are available to anyone who uses a trademark in “commerce” as that term is defined under federal law.  Typically, “commerce” is thought of as doing business in more than one state or in more than one country.  The use of the internet for sales has greatly increased the availability of federal trademark registrations.  Most people, who talk about “getting a trademark”, are actually describing applying for a federal trademark registration.  While anyone who uses a trademark gets to use the ™ symbol to identify it, with or without a registration, only trademarks that have been federally registered can use the ® symbol.

Trademarks Law is the area of law that applies if you want to protect a name, design, logo or slogan that you are using for your business, products or service; if you want to expand your rights geographically to an entire state or to the entire United States; if someone else is using a name, design, logo, or slogan that’s confusingly similar to your trademark; or if someone else is accusing you of using a confusingly similar name, design, logo, or slogan to their trademark. 

Anthony D. Pellegrini, Attorney at Law, Rudman Winchell

Anthony D. Pellegrini | Partner
The Graham Building | 84 Harlow Street
P.O. Box 1401 | Bangor, Maine 04402-1401
Tel: 207.992.2412 | Fax: 207.941.9715

Disclaimer


These materials have been prepared by Rudman Winchell for educational purposes only. They should not be considered legal advice. The transmission of this information to you is not intended to create a lawyer-client relationship. Readers should not act upon this information without seeking professional counsel. You should not send any confidential or private information to Rudman Winchell until a formal attorney-client relationship has been established, in writing.