What is a Trademark? | Alloy Patent Law

What is a Trademark? | Alloy Patent Law

September 1, 2021
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Walker Weitzel
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Trademark

THIS ARTICLE PROVIDES AN OVERVIEW OF WHAT TRADEMARKS ARE, HOW THEY CAN BE USED, AND WHEN YOU SHOULD CONSIDER GETTING ONE.

Why do we have trademarks?

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A trademark is a source identifier that is intended to give consumers information about a product. When going to the store, we may rely on trademark information to make a purchase. A typical example is when buying plastic food storage bags; consumers will look at what’s written outside of packaging before making their final decision about which product they want.

When it comes to food storage bags, we know through experience that not all brands are created equal. Some prioritize durability by using thicker material, while others favor minimizing environmental impact and lower costs with thinner materials, or alternative, eco-friendly options like hemp instead of plastic.

In any event, without opening the packages and doing other extensive research, the only thing we consumers can go on is the information printed on the outside of the package. Over time, we learn more about these products through experience, exposure to media reviews, and word of mouth. We might have learned that the store brand is totally sufficient for our food storage needs without compromising on demands while saving 30%. Or we may have noticed one brand is too likely to leak, so we feel better using a different trusted product instead. Our past experiences inform our current purchasing decisions.

However, if every storage bag came in a brown paper package, we consumers would never know which storage bags best represented our purchasing preferences. Often, initial quality is indistinguishable between competing brands, and the branding is the only information available when deciding to buy one product over another. Without trademarks, we would be stuck inspecting every purchase we made carefully, and we would still only have paltry information about what exactly we were buying.

Therefore, trademarks exist to help us know what we are getting. They save us time and money by telling us information about the quality of the goods we are getting. Trademark law, the body of law that governs trademarks, exists to make our lives easier and better by reducing the transaction costs of buying goods. It makes things more efficient for us, which is why trademarks are so important today.

Generally, anything that serves as a source identifier can be a trademark. Trademark law is the generic term for this source identifier law, but the same concepts apply to both goods and services. A trademark is specifically used for goods, while a service mark designates services. A word, a name, a phrase, a picture, a shape, and a color can all be used as trademarks. Even scents or aromas can be trademarks.

Related to trademarks is trade dress, which encompasses the overall look or overall image of a given product, not just its logo or name. Good examples of trade dress are the Coca Cola bottle shape and Tiffany Blue. Both of those inform the consumer about what they are getting. Like trademarks, trade dress can be registered with the USPTO for protection.

Who registers trademarks?

A trademark has a lot more legal force if it is registered with the government. Brands can register with the US or foreign governments to get protection in a whole country. It is also possible to register within individual states at modest expense.

Why would I register my trademark?

Typically, a trademark owner will want to register their trademark if they have a lot on the line with a certain trademark. For example, a startup that is going to invest in a marketing campaign will probably want to register their name because they want to make sure that they will own the rights to the name before spending on marketing or ads.

Similarly, if you have come up with a great name for a product or service, then you may wish to secure it until you are prepared to start using the mark.

How long does it take to register a trademark?

The process for US registration typically takes about a year. Occasionally there will be some back-and-forth with the USPTO examining attorney, in which case the registration process may be longer.

Is a trademark the same as copyrights and patents?

A trademark is used as a source-identifier, as discusses above. A copyright is used to protect creative works that are expressive (as opposed to utilitarian), such as writing, sculpture, video, music, and so forth. A patent is used to protect “useful” goods or methods, such as machines, materials, manufacturing methods, product design, and other things that have inherent utility.

How much does it cost to register a trademark?

Costs can vary significantly from attorney to attorney. Alloy charges $849 including USPTO fees as of September 2021.

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