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Trademark Law
What can be trademarked?



What is a Trademark?

A trademark is a word, phrase or design that identifies and distinguishes a product from goods or services developed by other companies. A product need not even exist to have a trademark. Trademarks may be filed before a product is introduced.


Requirements for a Trademark

A. It must be distinctive

The more distinctive a trademark, the stronger its legal protection will usually be. Trademark distinctiveness is described in four categories:

1. Arbitrary or Fanciful
2. Suggestive
3. Descriptive
4. Generic

  1. Arbitrary of Fanciful means that it has no relationship to the underlying product. For example, the words "Lexus," "Kodak," and "Apple" have no direct relationship to their underlying products (respectively, automobiles, cameras, or computers).


  2. Suggestive Trademarks indirectly describe a characteristic of the underlying product/service. For example, the word "Coppertone" is suggestive of suntan lotion, but this does not directly describe the product. Like arbitrary or fanciful marks, suggestive marks are distinctive and will be given a high degree of protection.


  3. Descriptive Trademarks directly describe a characteristic or quality of the underlying product. For example, "Holiday Inn" is the trademark of a hotel company catering to vacationers. "Holiday Inn," in itself, could not be a trademark. However, since "Holiday Inn" is recognizable from years of advertisement and use, it is now a legally strong trademark.


  4. Generic Trademarks are the weakest trademarks and will often fail to be approved. You cannot trademark "Bicycle, Inc." as the name for a bicycle manufacturer. To get your trademark approved, you should aim for a more distinctive name.



B. No Infringement with Existing Marks

Your trademark should not infringe on any existing trademarks. Courts use two theories to determine infringement:

1. Confusion
2. Dilution

  1. Confusion means that your trademark name will create consumer confusion relating to your product and an existing product. A major factor in confusion is how similar the industries are. "Apple Tech" would not be an acceptable name for a computer manufacturer, but would be acceptable for an unrelated industry, such as automobiles.

  2. Dilution is diminishing or damaging the value of a famous trademark. For example, using "Macy's" as the name of a flea market company could potentially be rejected as a legal trademark since it devalues an existing company's brand.

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