TRADEMARK

A trademark is any distinctive sign, design, symbol, or expression that’s used to establish and maintain a “brand identity” by distinguishing the goods and/or services of one company from the goods and services of other companies.

Some of the most famous examples of trademarks are the instantly-recognizable logos of companies such as Apple (the apple), KFC (Colonel Sanders), Mercedes-Benz (the three-pointed star), Nike (the swoosh), Pepsi (the red, white, and blue globe), and Starbucks (the mermaid) and slogans of companies such as BMW (“The ultimate driving machine.”), Capital One (“What’s in your wallet?”), Kay Jewelers (“Every kiss begins with Kay.”), State Farm (“Like a good neighbor, State Farm is there.”), and Subway (“Eat Fresh.”).

Trademarks date back to when craftspeople would put personal marks on their goods to identify their source and to certify their quality. (A “brand name” sword or horseshoe would sell for much more at the public market than a generic – and potentially less well-made – one would.) Trademarks allow consumers to know exactly what they’re buying without the need to test the good or service first. If you order a pizza from a place called “Domino’s” that comes in a box with the domino on it, you should know what you’ll be getting. If you go to a “Burger King” and ask for a “Whopper,” you should know what you’ll be getting. If you go into a “Louis Vuitton” store and purchase a purse with the LV monogram on it, you should know what you’ll be getting.

Unlike copyright, trademarks aren’t automatic. A company that wishes to trademark a distinctive sign, design, symbol, or expression – which may include everything from a particular color combination to a specific kind of packaging – must apply for a trademark registration from the federal government. Trademarks are renewable every 10 years (for a fee), but only so long as the trademark is actually used to identify the source of a particular good or service. If the “trademark holder” doesn’t use the trademark or if the trademark itself becomes so “generic” that it stops being identified with a particular company, the trademark loses its legal status. This has happened in the past to such trademarks as “aspirin,” “escalator,” and “thermos.” (Others, such as “Band-Aid,” “Kleenex,” “Post-It,” and “Styrofoam,” today remain protected trademarks despite their widespread generic use.)

The major purpose of a trademark is to identify the commercial source or origin of a product or service by ensuring that only one company has the exclusive legal right to use it. Anyone who uses the trademark without its owner’s permission or who uses a very similar sign, design, symbol, or expression that’s likely to cause confusion among consumers about the source or origin of a product or service commits “trademark infringement” – which in some situations is also called “counterfeiting.”

By most accounts, the oldest United States registered trademark still in use today is the Samson Rope company’s logo, which depicts the Biblical figure Samson wrestling a lion. It was registered for the first time in May of 1884.

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