Trademark is a type of intellectual property which protects enterprises from unscrupulous competitors that take advantage of the goodwill of the trademark holder in conducting business in an unfair way. It gives the trademark holder the exclusive right to use it in connection with sale of goods or services within the same or similar channels of conducting business. The trademark is not a thing itself but merely an identifier of the source of the goods or services that are being used in commerce.
A trademark may consist of a word, phrase, symbol, design, look, sound and even smell. A service-mark is essentially a trademark that is used to identify the source of the services rather than goods. A trademark fundamentally protects the general public from forged or “knockoff” goods by providing a way for the consumer to identify where the goods or services came from. Furthermore, the trademark also provides the public with an indicator that the quality or value of the goods or services will not change over time as they trace back to the source of its origin.
Unlike patent law or copyright law, so long as the trademark is used in commerce in connection with the sale of goods or services, it lasts in perpetuity. Once the trademark is not used in commerce, it ceases to serve its function of identifying the source of the goods or services. Thus, the right of exclusivity provided under trademark law vanishes. Therefore, it is important to continually use the mark in order to maintain the exclusive right, otherwise the protective rights will vanish.
A trademark is valid when it is “non-descriptive“ or it has acquired “distinctiveness“ with continual use. Generally speaking, once you start using a trademark as a brand or logo for your goods or services, you have protection under the law; however, a registered trademark (designated by the ® symbol), provides a more comprehensive set of tools to protect against infringers. Trademarks can be registered with State and Federal authorities. If the trademark is intended to be used throughout the United States, then the proper place to register it is with the United States Patent and Trademark Office (USPTO).
