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From dKosopedia



A trademark is a distinctive marking or group of words associated with a particular product brand. If that product brand is a service, rather than a good, it is called a "service mark". It is considered a form of intellectual property.

Unlike copyright and patent laws, which are exclusively within the province of federal law, in the area of trademark, federal law and state law co-exist. While state law cannot override federal trademark law, it can provide trademark protection where the state has jurisdiction, even if federal law does not.

Types of Trademarks

There are three main kinds of trademark protection. The most useful is protection as a registered trademark with the Patent and Trademark Office of the United States Department of Commerce under United States Code Title 15 (the Lanham Act). This provides nationwide protection for a mark with a single registration fee and a full range of legal remedies, but is costly to obtain and is only granted after a government official actively does a search to determine that there are no conflicting claims to the mark and that it is a mark of a type entitled to registration. A regististered trademark is noted by the circle R mark next to the mark when it is used.

The next most useful protection is a state trademark registration. A state trademark is typically perfected by filing a copy of the mark with a state secretary of state for a nominal fee, which is typically not reviewed by any government official for validity. A state trademark registration provides essentially the same remedies as a "common law trademark", but typically conclusively establishes in the public record for legal purposes that the person filing the trademark registration was using it in the entire state where it was registered as of the date of filing.

The least most useful protection for a trademark is a "common law trademark". (In fact, this has roots in both federal and state law). This is denoted by the letters TM or SM, as appropriate, next to the mark, and does not require any public filings. A suit to enforce a common law trademark usually requires the owner to prove that the owner was the first user of the trademark, that it was used and acquired a "secondary meaning" associated with the users goods in the area (both physical and marketwise) where an infringement is alleged, and extensive proof of damages. In contrast, in a suit based on a registered trademark additional remedies are available and many of the elements of an infringement suit may be proved simply by presenting a certified copy of the trademark registration.


Trademarks have no fixed term. They may persist as long as the owner continues to use the trademark. Trademark registrations must be renewed on a regular basis (accompanied by an affidavit of continued use) to remain effective.


Trademarks may not be obtained when they conflict with a prior registration or are merely "descriptive" rather than having a close association with a particular brand. Some trademark owners like Xerox and Klenex became such dominant brands in their markets that they have had to fight to keep their trademarked name from becoming merely a generic descriptive term.

Many of the high profile trademark suits (Donald Trump's "Your Fired!" claim, or Fox News' "Fair and Balanced" claim, for example) have involved instances where someone who is using a descriptive term or someone who is not the first user of a term somehow manages to register a trademark of dubious validity. Another group of high profile trademark suits involve the use of a personal name in a business brand which happens to be similar to a higher profile brand (e.g. "Victor's Secret" for a lingere store owned by Victor, pursued by "Victoria's Secret" the high profile national lingere store). Here to, the individuals have tended to be quite successful in court against the national brands.

How are trademarks used?

Most trademarks are used to identify a brand (a trademark is distinct from a trade name, in that it identifies a product line rather than necessarily being the legal name of the company that makes the goods). Indeed, some products are associated with multiple brands. For example, if you buy a Ford pickup truck at your local car dealer, the car will bear both a Ford trademark and a trademark from the local dealer. Normally, a trademark is used by a merchant to establish that its products have superior quality or is associated with something desirable like a cartoon character or a celebrity.

The classic trademark violation case involves someone attempting to sell knockoff clothing lines or purses or watches under a prestige brand name or designer label (which is itself a form of trademark) without authorization from the makers of the prestige item.

Another use for trademarks is to allow a third party to certify the quality of a good. For example, Underwriter's Laboratory uses its UL trademark to allow consumers to know that it has certified a product as being safe. Likewise there is a Fair Trade trademark that certifies that goods have been produced and imported in accordance with Fair Trade standards.


Stephen L. Carter, "The Trouble With Trademark", 99 Yale L. J. 759 (January 1990). This article suggests that the old system in which trademark protection was acquired solely through use was preferable to the current system where a simple paper filing allows one to get national trademark protection with only a minimal economic investment in the trademark.

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This page was last modified 07:46, 28 July 2005 by dKosopedia user DRolfe. Based on work by Andrew Oh-Willeke. Content is available under the terms of the GNU Free Documentation License.

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