What are Trademarks?
A trademark is a word, symbol, or a combination thereof that identifies the owner or producer of goods marked with it. A service mark is a word, symbol, or combination thereof that identifies the owner or provider of services associated with it. Because trademarks and service marks are generally treated the same under Trademark Law, only trademarks will be discussed hereafter.
Examples of Trademarks
Examples of trademarks include the “Golden Arches,” which identifies certain restaurants as owned or franchised by the McDonald’s Corporation. The “Swoosh” identifies footwear and clothing as manufactured and sold by Nike. The words “Coca-Cola” identify beverages produced and sold by the Coca-Cola Company.
Use of Trademarks
Trademarks exist through use. That use has to be in “trade.” This means used in some sort of business endeavor. It can be a for-profit or a not-for-profit business. It cannot exist apart from that type of use. The 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.
Where Trademarks Apply
A trademark’s protection applies where used. Some trademarks are limited to a 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, state or federal governments can register trademarks. A trademark registration issued by the government does not create the trademark. Rather, it expands its geographic scope. Thus, that local pizza parlor could obtain a state trademark registration.
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. Its name would 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 defined under federal law. Typically, “commerce” involves doing business in more than one state or in more than one country. The use of the internet for sales greatly increased the availability of federal trademark registrations.
Most people, who talk about “applying for a trademark,” actually describe applying for federal trademark registration. Anyone who uses a trademark can use the ™ symbol to identify it, with or without registration. However, only federally registered trademarks can use the ® symbol.
Trademarks Law applies if:
- You want to protect a name, design, logo, or slogan that you use for your business, products, or service
- You expand your rights geographically to an entire state or to the entire United States
- Someone else uses a name, design, logo, or slogan confusingly similar to your trademark
- Someone else accuses you of using a confusingly similar name, design, logo, or slogan to their trademark
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