• David Manes

What is a trademark and how do they work?

McDonald’s, Apple, Exxon, Buick. These are the names of companies that we know well. They are instantly recognizable. When we hear these names we know exactly what each of these companies does: McDonald’s makes hamburgers, Apple makes computers. However, clues to what they make cannot be found in the name. To someone born in a jungle they would assume that Apple is a company that produces, well, fruit. These names are really trademarks that the companies use to market and brand their products. Any new company that hopes to one day make it big should understand trademarks and how they work.

What is a trademark?

A trademark is a word, sign or expression that is used to identify products or services as being different from others. It is the legal protection assigned to these words and symbols. Trademarks are the main tool that businesses use to protect the words that identify the origin of their services and products.

The basic premise

The idea behind trademark law is that the first person to use a distinctive name or symbol gets the exclusive right to use that symbol to identify its product. Once you have registered that name with the federal trademark agency that name is protected. Not only are you now the exclusive legal user of that name, but you can prevent others from using it as well. This protection helps to serve the main policy behind trademark law.

The policy behind trademark law

Trademark law exists to prevent individuals from getting a free ride off of the name of someone else’s product that they spent hard work and creativity on to build. It also exists to prevent customers from being confused by names that are too similar and too easily mixed up.

Strong and weak trademarks

Some words cannot be trademarked because they are considered too weak. For example, a company cannot trademark the word “refrigerator,” or “bicycle” if you sell one of these products. These are descriptive words and everyone uses them. However, using the examples above, if you make computers, you can call yourself “apple” because apples and computers are far removed from each other. Therefore “apple” would be a strong trademark in the world of computer production, but not if you sold apples.

Conclusion

Trademark law can be tricky, but it is necessary to understand for a burgeoning new business. Trademarks exist to protect the origins of products and to prevent consumers from being easily confused. It is a legal protection and some trademark names can be strong and others weak. If you need help picking out the correct name for your business, contact a local attorney who can help you trademark your name the right way.[1]


 

[1] Fred S. Steingold, Legal Guide for Starting and Running a Small Business 103-105 (Betsy Simmons ed., Nolo 10th ed. 2008).

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