Trademarks, which identify products or goods, and service marks, which identify services, are source identifiers. When you are driving, and you see a restaurant that has distinct looking yellow arches, you know the food from that restaurant will be McDonald’s food. When you buy a basketball and the only mark on it is a distinct looking checkmark, you know that it is a Nike basketball. When you get a package with an “a” and a curved arrow underneath it, you know that it came from Amazon. The yellow arches, checkmark, and “a” with a curved arrow under it are used by McDonald’s, Nike, and Amazon, respectively, to distinguish their products and services from those of others.
The law recognizes these marks as a form of Intellectual Property to prevent the integrity of marketplaces from being compromised. For example, if your business has expended tremendous efforts to grow and become well known in a marketplace, and a new competitor comes along and opens up shop right around the corner, and with a large sign in front that is nearly identical to the sign you have in front of your establishment, many of your customers might enter your competitor’s business, assuming that it is an extension of yours. All the work you will have done to build the good will of your business will be threatened merely because your competitor has misled many customers into believing his or her business is connected to you. Trademark law is designed to protect against this. More specifically, trademark law protects against actions that cause confusion and/or dilute someone else’s trademark or service mark.
While the McDonald’s arches, Nike checkmark, and Amazon “a” with a curved arrow underneath are in the form of symbols, it is understood that trademarks and service marks can be words, phrases, logos, pictorial representations, combinations of any of the aforementioned, the shape of a container or packaging, colors, scents, sounds, or domain names. Furthermore, in order to qualify for a trademark, the symbol must be distinctive, and must be used in commerce. Finally, like patents and copyrights, infringement of a trademark or service mark is not something that the criminal courts in this country recognize. As such, if someone is infringing your trademark or service mark, your recourse will ultimately be through civil litigation.
For more on trademarks and service marks, please proceed to the USPTO website by clicking: https://www.uspto.gov/trademarks-getting-started/trademark-basics.
This article was authored by John P. Powers, is intended to keep readers current on matters affecting intellectual property, and is not intended to be legal advice. If you have any questions about its content, please leave a comment below.
©John P. Powers, 2021, all rights reserved.