An Overview Of Trademarks

According to the United States Patent and Trademark Office (USPTO), a trademark is "Any word, name, symbol, or device, or any combination of these, used, or intended to be used, in commerce to identify and distinguish the goods of one manufacturer or seller from those of others. In short, a trademark is a brand name."

In other words, a trademark is a motto, logo, color, sound, or any other device used to identify your business and products. Once a trademark is registered with the USPTO, no other business may use similar marks that may infringe upon your rights.

In the United States, a trademark can be registered by:

- US nationals;

- Legal entities that are domiciled in the US; and

- Legal Entities that have a commercial or industrial establishment in the US.

To register a trademark in the United States, you can get the help of a professional New York trademark attorney.

Trademark Distinctiveness

In order for a trademark to be eligible for registration, it must show some distinctive character. Three examples of distinctive trademarks include fanciful trademarks, arbitrary trademarks, and suggestive trademarks.

Fanciful trademarks are "coined new words" that have been invented to serve as trademarks and have no other meaning apart from their identifying function. Kodak and Exxon are examples of fanciful trademarks.

Arbitrary trademarks are legitimate words or designs which have a meaning that bears no relationship to the product they identify. "Domino's" pizza and "Apple" computers are examples of fanciful trademarks.

Suggestive trademarks are words or designs that require thought, imagination, and perception to associate them with the product or service they identify. These suggest characteristics of the goods or services without actually naming them. "Coppertone" for suntan oil and "Hefty" for garbage bags are examples of suggestive trademarks.

A New York trademark attorney can tell you which category your mark falls under.

Descriptive Trademarks

As a matter of fact, descriptive trademarks are not considered to be inherently distinctive, and so they are not necessarily able to be protected as trademarks.

Descriptive trademarks include:

- Trademarks that merely describe, in words or pictures, the intended purpose or characteristics of the goods or services they identify;

- Trademarks that primarily describe the geographical origin of the goods or services;

- Trademarks that are primarily made up of a person's surname; and

- Trademarks that primarily describe laudatory aspects of the goods or services.

In this manner, trademarks found to be merely descriptive will not be registered by the USPTO unless a secondary meaning is established. Secondary meaning can be established when a mark is widely recognized, generally as a result of extensive marketing and advertisement.

If you feel you have a descriptive trademark, a New York trademark attorney can tell you whether it may be registered. If your registration is denied, A New York Trademark attorney may fight for your rights in a court of law.

About The Author Charles N. Internicola, is a franchise lawyer who represents start-up and established franchisors throughout the Unites States, in all fifty states, including New York and New Jersey. Charles is the author of "An Entrepreneurs Guide to Purchasing a Business" and he is the publisher of the "Franchise Law Blog".