Trademarks in a Nutshell
(This is obviously not EVERYTHING about trademarks. See future posts for more information!)
A trademark is generally a word, phrase, symbol or design, or a combination of those, that identifies and distinguishes the source of the goods from one person or entity from the goods of others.
A service mark is the same as a trademark, except that it identifies and distinguishes the source of a service instead of goods.
People often use the words "trademark" or "mark" to refer to both trademarks and service marks.
So what does that mean in the real world?
A trademark tells consumers who made (manufacturer) and/or is offering particular goods or services for sale (retailer, wholesaler or service provider). If you are looking to purchase socks and a friend tells you "I really like Red Rabbit Socks," they are using the trademark "Red Rabbit Socks" to identify the source of the socks they like. If your friend says "My favorite sock store is Blue Badger Sock Shack," they are using the service mark "Blue Badger Sock Shack" to identify their preferred source of retail services for socks. When you see the Red Rabbit Socks logo on your friend's socks, it is telling you the source of that particular pair of socks and that is what makes it a trademark.
Well, that seems pretty easy, right? But wait!
Not all words or designs qualify as trademarks and not all trademarks qualify for trademark protection.
There are some special rules as to what can be claimed as a trademark.
One of the major rules about trademarks is that they cannot be generic or descriptive of the goods or services being offered.
For example, you can't claim "Milk" as your trademark if you are selling milk. Why not? Because that is a "generic" mark - a common, everyday name for that good. The law doesn't allow one person or entity to have exclusive use of that mark and exclude everyone else from using it. You also can't use "Fresh and Creamy" as a trademark for milk because it is "merely descriptive" of some of the qualities of milk. This rule prevents people from directly describing something about the goods or services without adding anything else and claiming that as a trademark.* Think "Chocolatey" for hot cocoa mix or "Ultimate Woolen Socks" for socks. Even a design can be descriptive - a milk bottle, picture of a sock, or cup of hot cocoa would not be allowed by themselves as a trademark for those goods.
You could, however, claim "Sunny Skies Milk" as your trademark for milk as long as no one else is using that mark already in connection with selling milk. Even though this mark has the word "milk" in it, adding the words "Sunny Skies" makes it no longer generic because it is not a common name for milk and does not describe milk. And a picture of a milk bottle with the words "Sunny Skies Milk" would likewise pass muster. You could also use "Milk" in connection with sales of... hmm... computers? That would be an "arbitrary" mark and is one of the strongest types of trademarks.
There are lots of other rules about what can be used as a trademark and we will be posting about them here. If you have an idea for a trademark and would like to discuss it with us, give us a call at 972.661.9400 or contact us.
*As always with the law, there is an exception to the rule about descriptive marks. If you use a descriptive mark for five or more years, you can usually obtain a registration and enforce the mark because it is considered to have "acquired distinctiveness" through use in commerce.