Trademark Fundamentals: What Is a Trademark?
For startups venturing into competitive business landscapes, protecting your brand is not just an option—it’s a necessity. One of the most effective ways to protect the investment you make in building your brand identity is through effective trademark management. This article will explain what trademarks are and what kinds of things can be trademarked, ensuring you have the knowledge to safeguard the unique assets of your business to maintain your competitive advantage.
What is a trademark?
A trademark can be nearly anything that is capable of distinguishing the goods or services of one company from those of other companies (i.e., telling consumers that your goods/services come from you and not your competitors), including:
What rights do you get from a trademark?
With exceptions, the owner of a trademark will have the exclusive right to use the trademark on or in connection with its goods or services. In other words, it is a legal monopoly, giving the trademark owner the right to prevent others from using a similar brand that may confuse consumers.
How do you get trademark rights?
In general, trademark rights arise from commercial use of a word, phrase, logo, etc. as a brand for goods or services. Those rights may be limited if your trademark is similar to one or more trademarks owned by third parties. However, once you start using a word, phrase, or other thing as a trademark, you obtain some degree of trademark rights in that word, phrase, or thing.
What about trademark registrations? Do I need one?
Technically, no. It is not necessary to register a trademark to have protectable trademark rights. Simply using a trademark in connection with the sale of goods or services will give you some trademark rights.
That said, trademark law provides significant incentives to register trademarks. By registering a trademark, you create a public record of your claim to that word, phrase, logo, etc. in a freely searchable database. In exchange, you get a broader scope of rights (presumptive prior rights in all 50 states as opposed to only those geographic regions in which you have used the mark) and other legal benefits that make protecting and enforcing your trademark rights practical.
Why should you protect your trademarks?
Trademarks are crucial for most businesses for several reasons, including:
Takeaway
For startups, selecting strong trademarks and getting effective protection for them should be part of the business strategy from the very beginning. Identifying and legally protecting your intellectual property early can save you from potential disputes and strengthen your market position. If you’re unsure about how to proceed, consulting with a trademark attorney is a wise decision to ensure your brand (and the value associated with it) is adequately protected.
What is a trademark?
A trademark can be nearly anything that is capable of distinguishing the goods or services of one company from those of other companies (i.e., telling consumers that your goods/services come from you and not your competitors), including:
- Words and Phrases
These are the most common types of trademarks. Any unique word, name, or phrase that identifies the source of goods or services can function as a trademark. Examples include “Google” for search engine services or Nike’s famous “Just Do It” slogan for athletic apparel. - Logos and Symbols
A logo or symbol that represents your company can also be a trademark. The Apple logo and the McDonald’s “golden arches” are prime examples of globally recognized (and protected) trademarks. - Colors
Colors can be trademarked if they are used in a specific and consistent way to identify a brand. For instance, the particular shade of blue used by Tiffany & Co. for its packaging and branding is a trademark. - Sounds
Sounds that are uniquely associated with a brand can also be protected as trademarks. Famous examples are the NBC “three chimes” and the Intel “bong.” - Scents
Although less common, scents can be protected as trademarks if they are distinctive and consistently linked to a specific product. An example would be the scent of Play-Doh, which is protected as a trademark. - Product or Packaging Design
If a product or its packaging is particularly unique, the design can be protected under trademark law if its aesthetic qualities can be separated conceptually from any functional aspect of the product or packaging (referred to as “trade dress”). The shapes of a Coca-Cola bottle or the Toblerone bar are examples of protected trade dress. - Other
In addition to the above examples, there are protected trademarks for a particular type of motion, like the way a Lamborghini’s doors open (i.e., scissor doors), or the layout of retail stores, including the Apple store. The point is, if you consistently do or use something unique that consumers see as “your brand” or that becomes associated with your business, it can potentially be protected as a trademark to prevent others from incorporating these unique features into their products.
What rights do you get from a trademark?
With exceptions, the owner of a trademark will have the exclusive right to use the trademark on or in connection with its goods or services. In other words, it is a legal monopoly, giving the trademark owner the right to prevent others from using a similar brand that may confuse consumers.
How do you get trademark rights?
In general, trademark rights arise from commercial use of a word, phrase, logo, etc. as a brand for goods or services. Those rights may be limited if your trademark is similar to one or more trademarks owned by third parties. However, once you start using a word, phrase, or other thing as a trademark, you obtain some degree of trademark rights in that word, phrase, or thing.
What about trademark registrations? Do I need one?
Technically, no. It is not necessary to register a trademark to have protectable trademark rights. Simply using a trademark in connection with the sale of goods or services will give you some trademark rights.
That said, trademark law provides significant incentives to register trademarks. By registering a trademark, you create a public record of your claim to that word, phrase, logo, etc. in a freely searchable database. In exchange, you get a broader scope of rights (presumptive prior rights in all 50 states as opposed to only those geographic regions in which you have used the mark) and other legal benefits that make protecting and enforcing your trademark rights practical.
Why should you protect your trademarks?
Trademarks are crucial for most businesses for several reasons, including:
- Brand Recognition. Trademarks make it easier for customers to find you. In a crowded marketplace, a strong brand stands out.
- Legal Protection. Trademarks provide legal clarity and exclusivity, helping protect your brand from imitation and misuse.
- Business Value. Trademarks can become valuable assets over time. As your brand grows (through your investment of time and resources), the value of your trademarks can increase, making them a crucial part of your intellectual property portfolio.
Takeaway
For startups, selecting strong trademarks and getting effective protection for them should be part of the business strategy from the very beginning. Identifying and legally protecting your intellectual property early can save you from potential disputes and strengthen your market position. If you’re unsure about how to proceed, consulting with a trademark attorney is a wise decision to ensure your brand (and the value associated with it) is adequately protected.