Thursday, February 2, 2012

An Overview of Trademarks -- Part 16 in our IP and Patents Series

This is the sixteenth in a planned 20-part series of articles on intellectual property. In future posts, we will explore trademarks and copyrights.

In this posting, we will take a look at trademarks – what they are and what their value might be.

A trademark protects a word, phrase, symbol or design that is used to distinguish one source from another.

For example, trademarks keep Pepsi from naming its product Coke (and vice versa), they prevent Burger King from naming its hamburger a Big Mac (in case it ever wanted to), and they prevent some guy who builds custom cars in his garage from naming his enterprise Ford Motor Company. Trademarks identify and distinguish the source of the goods of one party from those of others.

Consumers (knowingly or not) rely on trademarks to ensure they are getting what they think they are getting. I was in a grocery store and noticed that, near the bottles of “Dr. Pepper” was a different version of the soft drink calling itself “Dr. Skipper”. One could easily surmise that the drink purported to be similar to Dr. Pepper (in this case, at a lower price), but had to ensure that it called itself by a different name, in case the shopper wanted the real thing.

One can trademark a word, a logo or phrase. Some examples of trademarked words include:

  • Versace
  • Fungal
  • Sprint
  • Persuasion
  • Imagine
Of course, this doesn’t mean the word cannot be used; someone named Versace could still be identified by that name, and if you said you were going to “sprint to the finish line”, you can’t be sued for trademark infringement by the cell phone company.   However, the trademark ensures that no one else can use the name “Versace” to identify their clothing line, or “Sprint” to identify their cellular phone. The same applies to the term “Fungal”, when it comes to children’s toys, “Persuasion” for cosmetics, chocolate and wine, and “Imagine” on surfboards.

Phrases can be trademarked as well. Examples include:
  • The Power of You (used by Time Warner Cable)
  • Just Do It (Nike)
  • Got milk?
  • Quality is Job One (Ford)
  • and, our favorite, S/Cap RFID Tags
Logos, as well, can be trademarked. Examples include the familiar logos used by McDonald’s, Starbucks, Nike's “swoosh”, and many others.

When a logo, word or phrase is trademarked, the owner can claim that ownership by adding the letters “TM” to it. For example, the theater chain, AMC, advertises the AMC Gold ExperienceTM. This phrase is considered to be a trademark by AMC, as noted by the “TM”. Anyone who feels that their logo or word or phrase is a trademark that belongs to them can add the “TM” designation.

However, when a trademark is registered with the US Patent and Trademark Office (USPTO), the designation ® can be used. For example, the same company AMC, has a ® after its term “Show Snacks®”, which suggests that, although the terms “AMC Gold Experience” may or may not have been registered with the USPTO, the term “Show Snacks®” has. The ® designation can resolve a host of issues and can be a huge benefit for the trademark owner, when it comes to trademark litigation.

In the next post, we will discuss the process of obtaining a registered trademark.

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