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What is a trademark and how can I obtain one?

A trademark, in short, is a brand name. A "trademark" relates to goods, while a "service mark" relates to services. Both trademarks and service marks can be any word, name, symbol, or device — or any combination used, or intended to be used, in commerce. Even colors, sounds, and scents may qualify for protection! 


Trademarks have three main functions:


Trademarks differentiate the goods or services of one business from another business


Trademarks identify the source of the goods or service, i.e. identify the business itself


Trademarks ensure a brand's consistent level of quality, which is not to be confused with ensuring a particular level quality.

For Example...

Take two large competitors in the beverage industry: Pepsi® and Coca-Cola®.


First, when at a vending machine, the Pepsi label lets one know the beverage is a Pepsi, and the same goes for Coca-Cola.


Second, the Coca-Cola label indicates that the beverage comes from The Coca-Cola Company, while the Pepsi label indicates that the beverage comes from PepsiCo


Third, regardless of whether one buys a Coca-Cola or Pepsi beverage in Los Angeles, California, or New York City the products will be of a consistent quality. A Pepsi in New York will have the same flavor as a Pepsi in Los Angeles, and the same goes for a Coca-Cola.


However, ensuring a consistent level of quality does not ensure that any product meets a particular level quality.


Though many people enjoy both Pepsi and Coca-Cola because they each are consistent regarding their respective flavors, that does not necessarily entail that drinking a gallon of both every day is healthy. Thus, again, ensuring a consistent quality of a product is not to be confused with ensuring a particular level of quality. However, these three main functions are not the same thing as the requirements for registration of a trademark.


Even though the source of the goods or services may be unknown, a mark may still be registered.


The United States Patent and Trademark Office (PTO) requires a mark to be capable of distinguishing an applicant's good or services before they will issue a registration for the mark.


Those marks, which actually distinguish goods or services, are said to be "distinctive."


The difference between marks capable of distinguishing goods or services and marks that actually distinguish goods and services is further discussed below.


A descriptive mark immediately conveys knowledge of the ingredients, qualities, or characteristics of the goods or services with which the mark is used.

The registration of descriptive marks are more complex because it also requires an explanation of the two sections of the Federal Trademark Register, namely, the Principal Register and the Supplemental Register. Generally speaking, most descriptive marks can be registered on the Supplemental Register, but not all descriptive marks can be registered on the Principal Register.


A descriptive mark can only be registered on the Principal Register if it has acquired secondary meaning by consumers — sometime called acquired distinctiveness. Secondary meaning does not come automatically, but is usually acquired after a business has become established and consumers recognize the mark.


In other words, regarding distinctiveness, there are two broad categories of descriptive marks:

(1) merely descriptive marks which have not acquired secondary meaning

(2) descriptive marks which have acquired secondary meaning. i.e. Best Buy®

Above, a difference was noted between marks capable of distinguishing goods or services and marks which actually distinguish goods and services, and the difference mainly deals with the Principal Register, the Supplemental Register, and descriptive marks.


A merely descriptive mark is only capable of distinguishing goods or services, while a descriptive mark which has acquired secondary meaning actually distinguishes goods and services. Inclusion of a trademark on the Principal Register offers much more protection to the owner of a mark than inclusion on the Supplemental Register; however, a mark can only be included in the Principal Register if it actually distinguishes goods and services. Thus, the Supplemental Register is generally reserved for merely descriptive marks.

Registration of a merely descriptive mark on the Supplemental Register gives, among other things, the mark time to acquire secondary meaning so that the user of the mark can eventually register the mark on the Principal Register, gaining more Federal Trademark Rights and the protections associated therewith.


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