Intellectual Property (“IP”) law doesn’t just cover innovative works. It also protects a business’s marketing efforts. Many small businesses or entrepreneurs focus on obtaining protection for their actual product – which is important – but they forget to also take advantage of the available protections for their brand.
Depending on your future plans for your business, obtaining a trademark may be a good avenue to protect your efforts. This is especially true if you aspire to have a regional or national presence. You would want your name to be known and protected so that consumers can distinguish between your business and a “knock-off” one.
Like any IP protection, planning for trademark protection should start early. This is especially true for trademarks because the strength of your trademark depends on consumer perception – and that necessarily requires building rapport with consumers. After all, how will someone understand that a certain mark is your company’s if he or she hasn’t seen it?
What Is A Trademark?
Essentially, a trademark is a mark used to indicate the source of goods. The purpose of a trademark is to prevent the likelihood of consumer confusion. The mark provides information about the specific good based on the business’s association with that mark. For example, if you wanted a cup of coffee and saw a shop with a particular green logo (i.e., Starbucks), that logo would likely trigger certain information about the company and the product based on the business’s association with that particular mark. You then have certain expectations based on your knowledge. Triggered by the mark, that relationship between the consumer and the business is key.
A trademark can be in the form of words, names, symbols, or devices that an entity uses or intends to use to distinguish its goods from others. Although the most common form is verbal, a trademark can also be a shape, sound, color, or even scent. Just recently, toy company Hasbro registered for a trademark on the scent of Play-Doh. The law on non-verbal or non-graphic trademarks is not as developed as that for the common forms, but companies are always pushing the envelope to get protection.
The Different Kinds Of Trademarks
When deciding on trademark protection, understand that there are different categories of trademarks and each category vary in terms of protection.
A generic mark receives no protection because it does not identify the source of goods or distinguish the goods from others. Such a mark would include a genus, a natural reference, or a class of products. Think of goods that you refer to with a particular name regardless of the company that makes it. For example, back in the day, Xerox launched a massive advertising campaign to teach consumers that Xerox was not a verb but a particular company machine. Consumers were using the word “Xerox” regardless of what machine they were using. This was risky for Xerox because that meant consumers were no longer identifying “Xerox” with the company, but rather just using it as a generic word.
A descriptive mark, which describes a product or service, grants better protection. Similar to a generic mark, it can refer to broad classes of things and thus may not be helpful in distinguishing a good/service from others. However, if consumers view the mark as having a secondary meaning, then the descriptive mark may obtain legal protection. This is a big reason why, as a small business, you may want your marketing efforts from the outset to tie your mark to your company.
A suggestive mark does not describe the good or service being sold but suggests a characteristic or quality of the product with the help of the consumer’s imagination. Thus, a suggestive mark is “inherently distinctive” and receives relatively strong trademark protection relative to a descriptive mark.
A fanciful or arbitrary mark is unrelated to the good or service being sold and so receives the strongest trademark protection. The mark may not make sense, may be made up, or may be an established word that is entirely unrelated to the good/service being offered (e.g., Apple).
Like other IP, trademark is governed by specific laws. They are protected under common law, state law, and federal law. You can obtain trademark protection through different avenues including being the first to use your trademark and registering your trademark on the state or federal level. However, it is important to note that there are certain requirements to obtain protection. Thus, early planning for trademark protection is important. Include trademarks in your IP management plan and speak to an IP attorney to see what trademark protection best fits your business’s needs.