What Is a Trademark? Protecting Brand Names, Logos, and Slogans

What Is a Trademark?

A trademark is a word, phrase, symbol, design, or combination thereof that identifies and distinguishes the source of goods or services from those of others. In simpler terms, a trademark is a brand identifier — it tells consumers who made the product or provided the service.

Examples of well-known trademarks include the Nike swoosh, Apple's bitten apple logo, the McDonald's golden arches, the word "Google," and the red and white design of the Coca-Cola can. Trademarks play a crucial role in commerce by preventing consumer confusion and protecting a company's investment in its brand.

Types of Marks

• Trademark: Used for goods (physical products). Example: Nike for athletic shoes.
• Service mark: Used for services. Example: FedEx for delivery services. (Legally treated the same as a trademark.)
• Trade dress: The overall commercial image or look of a product or business — including the shape, color, design, or décor. Example: the distinctive shape of a Coca-Cola bottle or the layout of an Apple Store.
• Certification mark: Indicates that a product meets certain standards set by a certifying organization. Example: the UL safety mark.
• Collective mark: Used by members of an organization to indicate membership. Example: a union's name or logo.

Trademark vs. Copyright vs. Patent

These three forms of intellectual property protection are often confused:

• Trademark protects brand identifiers (names, logos, slogans) and can last indefinitely as long as it is used and renewed.
• Copyright protects original creative works (books, music, artwork, software) automatically upon creation, lasting the author's lifetime plus 70 years.
• Patent protects new inventions and innovations, granting exclusive rights for 20 years from the filing date.

How Trademark Rights Are Established

In the United States, trademark rights arise from actual use in commerce — not from registration. You can establish common law trademark rights simply by using a mark in connection with goods or services. However, federal registration with the United States Patent and Trademark Office (USPTO) provides significant additional benefits.

The Trademark Registration Process

1. Clearance search: Before filing, search the USPTO's TESS database and common law sources to ensure your mark does not conflict with existing marks.
2. File an application: Submit an application to the USPTO identifying the mark, the goods/services it will be used with, and the filing basis (in use or intent to use).
3. USPTO examination: An examiner reviews the application for compliance and potential conflicts. This typically takes several months.
4. Publication: If approved, the mark is published in the Official Gazette for 30 days, during which third parties may oppose registration.
5. Registration: If no opposition is filed (or any opposition is resolved), the mark is registered and a certificate issued.

The entire process typically takes 8 to 18 months and costs $250–$350 per class of goods/services for the filing fee alone.

Benefits of Federal Registration

• Nationwide priority of use from the filing date
• The right to use the ® symbol (unregistered marks may use ™ or ℠)
• Presumption of ownership and validity in legal proceedings
• Ability to block infringing imports at U.S. Customs
• Basis for filing trademark applications in foreign countries
• Access to federal courts for infringement lawsuits

Maintaining and Renewing a Trademark

Registered trademarks do not expire automatically — but they must be maintained:

• Between years 5 and 6 after registration: file a Declaration of Use (Section 8 declaration) showing the mark is still in use.
• Every 10 years: renew the registration by filing a combined Section 8 and Section 9 renewal.

A trademark that is abandoned (no longer used) or becomes generic (used to refer to an entire category rather than a specific brand) can be cancelled. Examples of former trademarks that became generic: aspirin, escalator, thermos, and zipper.

Trademark Infringement

Infringement occurs when someone uses a mark that is likely to cause consumer confusion about the source of goods or services. The key test is likelihood of confusion — not actual confusion. Factors include the similarity of the marks, similarity of the goods/services, channels of trade, and sophistication of purchasers.

Trademark owners who discover infringement typically send a cease and desist letter demanding the infringer stop. If ignored, litigation can result in injunctions, damages (including profits and attorney's fees in exceptional cases), and destruction of infringing goods.