1. Definition
Trademarks are words, symbols, logos, designs, or phrases used to identify the source of a product or service and to distinguish it from others’ products or services. A trademark is associated with products alone, while a service mark is associated with services, such as business consulting. The term “trademark” is often used to refer to both trademarks and service marks.
Trademarks can be word marks or design marks. Word marks consist of a word or words alone. Design marks consist of a design alone, a design combined with words, or words in stylized type.
2. First Use
The key to protecting a trademark is actually using the mark. Priority and ownership of a mark is generally governed by first use, rather than registration. A mark obtains “common law” protection against infringement from the time when it is first used in commerce. The U.S. government and individual state governments, each have separate registries for trademarks. However, an owner’s common law rights in the mark exist whether or not the mark is registered with the U.S. Patent & Trademark Office (the “PTO”) or with a state trademark office. A mark can be registered with the PTO only if it is being used in “interstate commerce,” which is liberally defined. There is a limited exception to this use requirement for a PTO “intent-to-use” application, though, even for ITU applications, timely use must ultimately ensue.
3. Trade Names
The name of a corporate or professional organization, by itself, is referred to as a trade name; rather than a trademark. A trade name symbolizes the reputation of a business, as a whole, while a trademark is used to identify and distinguish the various products and services sold by that business. Simply using a corporate name on letterhead and in advertising is generally considered inadequate to establish use of the trade name as a trademark (as a goods or services identifier).
4. Overlap With Copyright
In many instances, a logo can be protected both as a trademark and a copyright. For example, a city police patch can function as a source identifier for the agency and enjoy trademark protection as such. At the same time, if the police patch includes original artwork, the artwork and design of the patch may also separately be protected under copyright.