What Types of Marks Does a Trademark Protect?

by Marilyn Lindblad

A trademark enables consumers distinguish the goods of one manufacturer from its competitors' goods. It helps consumers shop more efficiently, because they can look for familiar trademarks that they trust. Instead of comparing the ingredients in every can of chicken soup at the grocery store, a shopper simply identifies the soup that she likes by its trademark. Trademarks protect several types of marks, including text-based marks, design marks, symbols and marks that combine these elements.

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Trademarks and Service Marks

A trademark describes the source of goods, and a service mark describes the source of services. A service mark or a trademark can be a word, phrase, symbol, design or combination of any of these. A service provider or maker of goods who registers his mark with the U.S. Patent and Trademark Office can use the federal registration symbol, an "R" within a circle, with his mark. Unregistered marks are called "common-law" trademarks. The owner of a common-law service mark can use the designation "SM" after his mark to indicate that he is using it as a service mark. Similarly, the owner of a common-law trademark can use the designation "TM" with his mark as a source identifier. Most people use the term "trademark" to refer to a mark for services, goods or both.

Words, Phrases and Symbols

A trademark can be a word, phrase, symbol, design, or a combination of those elements. If a trademark owner uses words such as "Big Mac" as a trademark for a hamburger sandwich, other restaurants cannot use the same name as a source identifiers for their sandwiches, even if they use a different font style or size. If the owner uses a symbol or design as a trademark, makers of similar products cannot use the same symbol or design.

Fanciful and Arbitrary Marks

Trademark law offers the strongest protection for marks that are fanciful, such as made-up words or symbols that have no previous association with any product or service. The Patent and Trademark Office uses the "Exxon" brand as an example of a fanciful mark. The trademark owner created the word "Exxon" to identify its gasoline and motor oil. Before the company trademarked and marketed "Exxon," the public did not associate the word with any product or service. Similarly, arbitrary marks also receive strong protection. An arbitrary mark is an existing word that a trademark owner uses out of context to identify a product. For example, the word "kindle," a verb associated with starting a fire, is arbitrary when a company uses it as a trademark for a portable electronic text-reading device.

Secondary Meaning

A trademark also protects marks that are personal names, descriptive words or geographical names, but only after they have acquired "secondary meaning" -- that is, after the public associates them not only with their original meaning but also as a trademark. "American Airlines" is a classic example of a geographical trademark that is entitled to protection because it has gained secondary meaning. Arguably, any airline that is owned and operated in the United States could be called an American airline. However, over time, a substantial portion of the traveling public has come to identify the mark "American Airlines" with one distinct airline. Similarly, the public has come to identify the personal name "McDonald" with one distinct fast food restaurant and the term "Coppertone," which describes the color of suntanned skin, with a brand of suntan lotion.