A Trademark is a symbol, word, or words legally registered or established by use that disguises and properly represents a company or product ie. your brand.
Trademark’s are everywhere you look, and yet do you really know what they are? Trademarks are a strange animal and it’s necessary that you get to know them if you have business endeavors of any kind. Whether you’re making your own trademark or using other trademarks, there’s a whole lot to learn.
The definition of trademark is a pretty simple one. It’s only later that the topic gets complicated. Basically, a trademark is just a sign of some kind that distinguishes a company from all the rest. Trademarks sit under the umbrella of intellectual property. A trademark can come in many different forms. Maybe it’s am image or a a turn of phrase. Paris Hilton was recently poked fun at for trademarking the phrase that’s hot. Indeed, there’s a lot of controversy over what can and should be trademarked.
Are you thinking about buying some intellectual property? If you do, you will be able to take people to court if they use your trademark without permission. It’s important that your company has a signature and unless it’s protected, it’s useless and can be used by just about anyone. A trademark might seem a simple concept enough, but if you overlook the issue, it could cost you a lot down the road.
When talking about trademarks, you’re bound to get into some murky water. For instance, some marks, logos, phrases, images, etc, become trademarks over time, if by chance they simply grow to become synonymous with a particular product or service. When we think of trademarks in this way, it’s pretty apparent that a trademark is not a narrow concept at all. Anything that conspicuously distinguishes something from something else, in a sense, can technically be a trademark.
What about those little circles with the TM and R in them? What do they mean? The TM refers to trademark and the R refers to a registered trademark. While they serve as gentle reminders that the trademark is protected by law, they aren’t necessary. There are both unregistered and registered trademarks out there, the latter obviously carrying more weight in a court of law. Most of the trademarks you see on TV and in magazines are registered.
Just as with physical property, intellectual property when handled in court is dealt with based on its jurisdiction.
There are five basic kinds of trademarks: distinctive, arbitrary, suggestive, descriptive, and generic. On the other hand, there are some symbols that can never be used in trademarks, like national flags. It’s also important to note that national and international trademark law vary, so especially if you are conducing business overseas, you should be aware of that.
Your trademark is the most important asset your business will ever own. A good trademark will distinguish you from the competition and help you stand out in a crowd. A poor trademark will entangle you in legal disputes and blunt your marketing efforts. Selecting a good trademark is as simple as following the following guidelines.
1. Avoid Trademarks that cannot be Registered. There is no point investing in a trademark that you cant register. Registering the mark protects it from competitors, ensures your ownership rights in the mark and makes it easier to enforce your rights against copy cats. As you will read below, certain types of words are inherently poor choices for inclusion in a trademark because they cannot be registered.
2. Avoid Purely Descriptive Words. Words which describe the nature or quality of the goods or services sold with the mark are not permitted to be registered. Hence, the mark Cold Beer for use with malt beverages cannot be registered because it describes the actual product being sold. If registered, it would prevent anyone from using the terms Cold and Beer to describe their malt beverage.
3. Avoid Surnames. Surnames cannot be registered as trademarks. Hence the mark Wilson Power Boats is a poor choice for a trademark because the word Wilson is a surname (and the rest of the mark is descriptive).
4. Avoid Confusing Trademarks. A trademark which is confusingly similar to a registered trademark cannot be registered. Hence, the mark Sun-Screen cannot be registered if the trademark Sun Screen has already been registered for a similar type of product. A search of the US Trademarks Database (www.upto.gov.) and/or the Canadian Trademarks Database (www.cipo.gc.ca) is a good idea.
5. Avoid Generic Words in a Trademark. The goal is to select a trademark which is as unique and distinctive as possible; therefore, avoid generic words. Examples of generic terms include green, superior, Canadian, American, deluxe, gold, premium, economy, and a plethora of others. These words are generic and if you incorporate them into your trademark, you ensure that you blend into the crowd, not stand out in front of it. Geographic words fall into this category.
6. Avoid TLAs (Three Letter Acronyms) and Numbers. IBM, ATT, and CNN are distinctive trademarks because their respective owners poured tens of millions of dollars into making the marks famous. Even a poor trademark can be made famous if you through enough money at it. But acronyms are intrinsically difficult to remember, while words, especially colorful words, are easily remembered. Hence ELS Software Solutions is not as memorable as Volcanic Silicon. Likewise, avoid using numbers in a trademark as they tend to be less memorable. Furthermore, there are a limited number of unused acronyms available, so there is an excellent chance that your TLA will be confused with someone elses.
7. Do use invented words. Invented words are words which do not exist in any language, apart from your trademark. Examples include Spandex, Exxon, Kodak, Viagra, and several other famous trademarks. Invented words are a good choice for use as trademarks because they are not descriptive and they tend to be quite distinctive. You can create an invented word by simply combining parts of other words. For example, Microsoft is a combination of Micro computer and software.
8. Try animal or plant names. Animal and plant names tend to be quite memorable and, if used appropriately, can convey a good image while still being distinctive. Apple Computers is a good example, but other examples include Tiger Direct, Ford Mustang, and countless others.
Finally, make sure that the first word in your trademark is as distinctive as possible. It is often necessary to add descriptive words to the trademark in order to convey what is being sold or marketed in association with the mark. If generic words must be included then it is doubly important to ensure that the first word of the mark is as distinctive and unique as possible.
A trademark can open your company up to all kinds of business and separate it from the pack, but if it’s not formed carefully, it may misrepresent and misdirect your company. So choose your trademark wisely and make sure you understand the law backing it up so that you can use it to effectively represent your company, brand or product.
