What is a Trademark?

What is a Trademark?

A trademark is anything used in commerce to associate a particular product or service with the source or origin of that particular product or service.  In other words, a trademark is anything used in commerce to identify the company that makes the products or delivers the services you’re thinking about buying. Now, in many ways, the most interesting term in that trademark definition is the term anything. Why? Well, courts all over the world have permitted trademarks on a fairly wide selection of items that would be considered anything used in commerce to make this product/source association. Most people would quickly conclude that trademarks can be words or logos or combinations of words and logos (these word/logo combination trademarks are sometimes referred to a composite trademarks). And, they would be correct in concluding that, because trademarks can be words and logos and composites. But, they can be more than that. Under the right circumstances, it’s possible to secure trademark protection on colors, shapes, scents, sounds, and even the look/feel of restaurants. One unique thing about trademarks as a form of intellectual property that’s worth mentioning is that unlike the other main forms of intellectual property, patents and copyrights, as long as you continue to use your trademark in commerce in connection with your products or services, your trademark rights can have an unlimited duration (as compared to patent that typically have a 20 year life from the date of original application, and US copyrights that typically have a life of 75 years plus the life of the author(s)) It’s worth emphasizing that the most important thing you can do to create and maintain enforceable trademark protection is to continuously use your trademark in interstate commerce. Simpy, since trademarks are all about associating products and services with the sources of those products and services, without use in commerce, trademark protection is impossible. Put another way, just like it’s impossible to secure patent protection on a mere idea, it’s impossible to secure or maintain trademark protection on the mere idea of using your trademark in commerce. (Having said that, it is possible to file a trademark application based upon your intent to use your trademark in commerce…but even then, you will not have protection until you actually use your trademark in commerce).

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