MDGR LAW | Trademark & Business Law Firm
When starting a business, one of the first steps an owner should take is to conduct a trademark search and apply for a trademark.
A trademark is defined by the United States Patent and Trademark Office (“USPTO”) as “a word, phrase, symbol, or design, or a combination thereof that identifies and distinguishes the source of goods of one party from those of others.” The mark can be any one, or all of these, listed items.
The mark represents a brand and sets it apart from its competitors. It is a protection over one’s “intellectual property.”
In the United States, trademarks are protected by both common law and the Lanham Act.. Common law protections are certain rights that an owner automatically receives once he or she starts using the mark. However, common law rights are limited. A trademark owner can only receive full national ownership rights if the owner applies for a trademark with the USPTO. Thus, an owner must file a trademark application with the USPTO in order to obtain a registered trademark. Applications for trademarks are processed and registered according to the timeliness of filing. A business that files for a trademark early receives priority over any others.
All major businesses and companies trademark their products and logos.
One example of a trademarked product is Coca-Cola. This company trademarked the actual name “Coca-Cola” making it their own unique brand. The company also trademarked their styled red-font. The first registration for a trademark of Coke’s slanted font was filed in 1893. In 1947, Coke also filed a trademark for the signature red circle that appears behind its name on labels. They called this their “red button.” Further, the company trademarked the signature design of the bottle which was based on the ridged form of a cocoa pod. All of these trademarks are identifying factors for the brand.
We can all recognize Coke with its peculiar bottle shape, red label, and curving font. Rival companies cannot copy and infringe on these marks. Companies who do not own the trademark are not allowed to take Coke’s designs and implement them into their own particular product. This is because Coke’s distinct marks are protected via registration with the USPTO.
There are some things that cannot be trademarked by a company, though. For example, a pharmaceutical company once tried to obtain a trademark for the taste of a product, claiming that their special flavor recipe should be protected from replication. The USPTO denied their application on the grounds that the taste was functional, and not purely ornamental.
In sum, a trademark is an identifying factor of a brand. A business should always conduct a trademark search and apply for a trademark with the USPTO in order to receive full national ownership rights.
Research Assistance: Jace Sapenter-Nath
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