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By Donna Ray Chmura and Jennifer Westerhaus Adams
Trademarks are distinguishing symbols, designs or words used by a manufacturer
or dealer on its goods or services to distinguish them from the goods and services
of competitors. They allow customers to seek or avoid the products sold under
those symbols. Without them, how could consumers distinguish one company’s
hamburgers, tax preparation services or mint-flavored mouthwash from another’s?
Businesses rely on trademarks to identify their products or services in the
marketplace. Trademarks, sometimes called brand names, protect commercial goodwill,
and thus are important business assets that themselves must be protected and
used correctly.
A trademark is not a description of a product or a type of product.
In fact, a trademark is often followed by such a description: MCDONALD’S
restaurants, H & R BLOCK tax preparation services, SCOPE mouthwash.
Trademarks can be words (MICROSOFT, KRAFT); stylized words (COCA-COLA, FORD);
symbols and designs (LEVI’S stitch, CHEVROLET logo); shapes (CADILLAC
fins, PEPPERIDGE FARM goldfish); letters (IBM, CNN); numbers (409 cleaner, CHANEL
No. 5 perfume); telephone number combinations (1-800-MATTRESS, DIAL-LAWYERS);
abbreviations (COKE, BUD, VW); slogans (“YOU’RE IN GOOD HANDS WITH
ALLSTATE,” “WHERE’S THE BEEF?”); colors (pink for OWENS
CORNING insulation); container shapes (COCA-COLA bottle); building designs (MCDONALD’S
restaurants, FOTOMAT kiosks); clothing (DALLAS COWBOYS cheerleader outfits);
sounds (NBC chimes, MGM lion’s roar); and even fragrances (scented yarn).
When a mark identifies services, rather than goods (H&R BLOCK for tax
preparation services), the mark is technically called a “service mark,”
instead of a trademark. There is no practical difference between a trademark
and a service mark for federal registration purposes. The registration procedures
and the nature of protection offered for each are identical.
In general, any group of words or symbols can function as a trademark, but
U.S. law excludes certain limited types of words or symbols from trademark protection.
For example, marks which consist of immoral, deceptive or scandalous matter
and marks which consist of a flag or coat of arms of the United States may not
be registered as trademarks.
It is important to note the difference between a trademark and a trade name.
A trade name is the name of a company. Many companies check with their Secretary
of State to determine if a trade name or corporate name is available in that
state. If the Secretary of State allows registration of that corporate name,
it means only that there is not a preexisting company with a confusingly similar
name in that state. The Secretary of State is not responsible for determining
whether the proposed corporate name infringes the federal or state trademark
rights of another party. For example, a company could form a North Carolina
corporation called McDonald’s Restaurants, Inc. in North Carolina, because
no other corporation has registered that name. Most likely, however, if it were
to do so, it would receive a cease-and-desist letter from the McDonald’s
hamburger chain in short order; although the trade name is available, the proposed
name infringes the trademark rights of another business.
You may wish to consider whether the name of your business or of certain products
or services your business provides should be protected by a trademark registration
at either the state or the federal level in order to preserve the goodwill attached
to them and prevent others from misusing them. Walker, Lambe, Rhudy & Costley, P.L.L.C.’s business
attorneys have significant experience in acquiring trademark protection for
our clients and would be happy to assist your business in protecting its valuable
intellectual property.
© 2005 Walker, Lambe, Rhudy & Costley, P.L.L.C.
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