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What is a Trademark? - Definition, Registration & Examples

Instructor: Ian Lord

Ian is a real estate investor, MBA, former health professions educator, and Air Force veteran.

In this lesson we will define what constitutes a trademark. In addition to mentioning a few examples, we will also discuss the federal trademark registration process.

Trademark

Tom has founded a small software company and created a distinctive logo to appear on the program as well as marketing materials. He's concerned that other people might try to steal the logo in order to trick consumers into thinking they are buying his products.

Designating the logo as a trademark may help provide some legal protections, but first let's help him make sure that his logo qualifies and see how he goes about registering the trademark.

Definition

A trademark is used to identify goods made by specific producer. Tom's distinctive logo would be one such example, but trademarks can also take the forms of phrases, words, or symbols. Distinctive sounds, scents, or even shapes and colors can also be registered as trademarks. Names that are overly generic such as 'The Hardware Store' or 'I'm a Lawyer' may be difficult to get registered because they are so non-specific.

The two specific legal requirements to be a trademark is that the mark must be used in commerce and be distinctive. Everyday we are surrounded by examples. The Nike Swoosh or the Apple apple are distinctive. ''I'm lovin' it'' is an advertising phrase trademarked by McDonald's.

McDonalds uses a trademark phrase on all their products.
trademark

A trademark that is registered with the federal government has the benefit of numerous legal protections. Registration on the US Patent and Trademark Office's Principal Register automatically assumes that anyone using the same or a confusingly similar trademark is a willful infringer who is liable for monetary damages.

Tom could sue the infringer for the lost sales and most likely win. After registering and using the trademark for five years it's registered status becomes incontestable.

Registration

So how does Tom go about registering his trademark? The process is slightly different in each state, but in general the process is similar to Federal registration. The first thing Tom will need to do is check out the US Patent and Trademark Office's Trademark Electronic Search Service or TESS. This system allows Tom to be sure another person or company hasn't already registered a similar or identical trademark. If his mark is unique, he can proceed to the application.

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