As an intellectual property attorney, what I notice frequently is that many people don’t understand the differences between the different categories of intellectual property. Often, people have an idea of what is protected by each category but aren’t certain.
There are three (maybe four) different categories of intellectual property:
- Copyrights, protect original works of authorship
- Patents cover inventions
- Trademarks, which cover the identification of the source of goods and services.
- The fourth category is trade secrets, which covers any secret that gives a person or company a competitive advantage.
What is a Trademark?
A trademark can be anything that identifies the source of goods or services. If you are selling any type of good or service and you want people to be able to recognize that it is you or your business selling that good or service, you will rely on some type of branding, which may be trademarked. For example, the name of your business, a slogan, a color scheme, a logo - any of these indicators may function as a trademark.
I often use the example of NIKE® to help people understand the different types of trademarks. You have the company name, NIKE®, then there is the swoosh logo, and the slogan, JUST DO IT®. These are very traditional types of trademarks.
Less Traditional Types of Trademarks
Examples include color schemes and the look and feel of a product or packaging. For example, you can identify a John Deere tractor by noticing that it is green and yellow. This type of trademark is known as trade dress and is less common than the more traditional types of trademarks.
Another example of trade dress is the shape of a COCA COLA® bottle. As soon as you see that shape, you know that the soft drink inside is from COCA COLA®. As you may imagine, it is much more difficult to establish trade dress rights than more traditional trademark rights. You need to be able to show the United States Patent and Trademark Office that the packaging or similar identifying feature is distinctive enough to the consuming public.
You also need to establish that the features aren’t functional. If the feature you are trying to protect is functional, then the Trademark Office is of the view that this feature should be protected by patent rights and is not eligible for trade dress protection.
Trademark Use
For both trade dress and traditional trademarks, it is important that the trademark be used prominently in connection with the goods and services. For example, the packaging or the actual product must show the trademark to help consumers identify where the goods are coming from.
In the case of services, a website may advertise the services and this should have the trademark very close to the listing of services. If you are looking to trademark a name, you may want to consult with a trademark attorney in order to ensure that you are using your trademark properly before filing for a formal trademark registration.
Trademark Registration
Another interesting aspect of trademarks is that, in some cases, formal trademark registration isn’t required. Once you start using the trademark in connection with your goods and services, you have common law trademark rights. So, you are able to continue using your trademark in your geographic area.
Nonetheless, there are many benefits to formal trademark registration. For example, you are not limited to a certain geographic area, you are protected across the entire United States. There is a presumption of validity of your trademark because it was formally examined by the Trademark Office. There are other benefits, but one of my favorites is that you are then able to use the registered symbol - ®.
If you would like additional information on trademarks or any other area of intellectual property, I encourage you to join the Pirate Fight Club Facebook group As you can see, the Pirate Fight Club® trademark has been registered for use in connection with intellectual property legal services.