Trademark, any symbol, such as a word, number, picture, or design, used by manufacturers or merchants to identify their own goods and distinguish them from goods made or sold by others. Thus, a trademark identifies the source of a product and fixes responsibility for its quality. If customers like the goods, the trademark enables them to know what to purchase in the future; if they dislike the product, they will avoid goods with that trademark.
The name of a type of product cannot be a trademark, because every maker of that product is free to use its name. Sony, for example, is a well-known trademark for televisions, radios, and audio equipment, but no one can have trademark rights to the word television or radio. On several occasions, however, words intended by manufacturers to be used as trademarks for new products were instead used by customers to name the products; such words then lost their legal status as trademarks. Examples include aspirin, cellophane, and escalator.
History
Makers of goods throughout the ages have put their names on things they produced. Some producers devised symbols or pictures to identify and distinguish their products. Items as diverse as medieval swords and ancient Chinese pottery have been imprinted with identifying symbols to enable potential purchasers to trace the origin and determine the quality of the objects. Before the 20th century, trademarks were usually symbols or pictures rather than words, since most people could not read.
As trade increased in the 19th century, legal
rights of trademark owners were recognized, and laws prevented
other sellers from using a similar mark that could confuse customers
as to the source of products. In 1883 a group of nations created
the Paris Convention, an international treaty organization that
required member countries to recognize trademark rights of foreign
producers. The Paris Convention has been revised several times;
most nations are now members. The U.S. Congress first passed a
law in 1870 permitting the federal registration of trademarks.
The current federal trademark registration law in the U.S., the
Lanham Act, was enacted in 1946.
U.S. Trademark Law
Under the common law in each state, a seller who uses any symbol as a trademark acquires the legal right to prevent other sellers from using a similar mark. Many states register trademarks to maintain a public record and allow others to search the record before choosing and using a new trademark. In the federal Lanham Act, Congress has provided a nationwide register of marks for sellers who participate in interstate commerce. Although a trademark owner can rely on state common-law rights by merely using the mark, federal registration provides valuable extra protection. For this reason, many sellers federally register their trademarks.
In the U.S., a symbol cannot be registered as a trademark until goods or services identified by the mark have actually been sold. Thus, a person cannot select a trademark and register it before use. The law in most nations, however, allows a mark to be registered before actual use, although many countries require use on goods within a certain number of years after registration.
Trademarks are federally registered in the U.S. Patent and Trademark Office of the Department of Commerce. When a seller applies for registration, the office will examine the application to see if the mark meets the conditions of federal law. The most important condition is that the trademark is not confusingly similar to one previously registered or used in the U.S. On approval of the application, the trademark is published in the official gazette to enable any objections to be heard in an opposition proceeding. If a registration is granted, it lasts for 20 years and may be renewed at 20-year intervals for as long as the trademark is still in use. Once a federal registration has been obtained, the owner may give notice by using the symbol R next to the trademark.
Any seller who uses a mark so similar to a registered trademark that it is likely to cause customer confusion is an infringer and can be sued in a state or federal court. The court compares the conflicting trademarks as to similarity in sound, sight, and meaning. It is not necessary that the parties sell directly competing goods for likelihood of confusion to occur; for example, use of the trademark Yale on flashlights was held to be an infringement of the same trademark on locks. Unlike patent or copyright infringement, trademark infringement is defined solely by the likely confusion of customers. The usual remedy after a court trial finding trademark infringement is an injunction prohibiting the infringer from using its mark.
A trademark is often a valuable property of
a seller or manufacturer, because it is the symbol of the company's
goodwill and of its products and services. Thus, a trademark can
be sold or assigned when a company and its assets are sold. It
can also be licensed to others to use as long as the owner exercises
control over the quality of goods or services supplied by the
licensee; most fast-food outlets, such as Kentucky Fried Chicken,
or other franchised businesses are licensed to use the trademark
of the parent company (see Franchise).
Contributed by:
J. Thomas McCarthy