Can You Trademark a Public Object?

By Melanie Jo Triebel

When starting a business, most business owners strive to create a name and a set of identifying marks which will represent the business and appeal to consumers. But to protect those marks from being usurped by another, competing business, most owners turn to trademark registration. To obtain a trademark, however, the mark must first qualify for protection. When a public object is involved, whether trademark protection is available depends upon how the object is used.

What Can Be Trademarked

A trademark is a form of protection provided to names, images or even sounds and smells which consumers associate with particular products or services. A trademark can even include a geographic term, or geographical indication, such as a city name, if that term has acquired a secondary meaning. Examples of trademarked geographical indications are Florida oranges and Idaho potatoes, products that consumers now associate with a particular location. A trademark is any depiction or other distinguishing feature which sets apart the products or services of one business from those of another.

Trademarking a Public Object

Public objects, such as monuments, statues and other public structures used for the enjoyment of the public, are by definition available to everyone. That makes it unlikely that such a public structure would be granted trademark protection, largely because the object would not generally be used to identify a specific business' goods and services. The U.S. Patent and Trademark Office would be unlikely to exclude other businesses of the same type from using the public object, the result of granting trademark protection to just one business.

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Incorporating a Public Object Into a Trademark

Public objects, whether images or names, can be incorporated into a trademark. For example, a trademark could include an artist's rendering of a local statue or memorial, so long as the image is distinctive and unique to the particular business. Or, a trademarked business name could include the name of a public object, such as Lincoln Memorial Pizza or Washington Monument Pizza.

Public Objects and Copyright

Although public objects are not typically eligible for independent trademark protection, those that are works of art, such as sculptures, may be copyrighted to protect the artist's creation from unlicensed use. Also, an artist's rendering of a public object, such as a photograph or painting of an existing sculpture, park structure or monument, may also be eligible for copyright protection.

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How to Check to See If a Business Name Is Trademarked

Trademark law protects intellectual property, such as business names. Trademarks are an important means of identifying goods produced by a particular company and an essential part of any branding campaign. Many trademarks are registered with the U.S. Patent and Trademark Office, but not all trademarked names are registered. Unregistered trademarks may be protected by the Lanham Act and common law trademark protections.

When Does a Trademark Become a Generic Term?

Trademarks are licenses that businesses obtain to gain the exclusive use of a word or term for their business. This is to allow these organizations to better market their specific products or services by attaching their brand to a recognizable term. If anyone else uses the term, the business that holds the trademark can sue for damages and get the other business to stop using it. However, some terms may be classified as general and cannot be trademarked. It is important to understand what qualifies as a generic term and whether a term can be something that can be trademarked but transformed into a general term.

Can the Owner of a Registered Trademark Be Sued for Infringement?

Trademark law is derived from common law that was intended to prohibit companies from competing in the market using unfair and unethical business practices. Trademark law prevents the unauthorized use of a mark in commerce that might cause confusion among consumers as to the true source of goods and services. It also prevents competitors from diluting the reputation and "good will" the product or service has gained with consumers. A business can sue another business for trademark infringement, even if the trademark is registered, if the business bringing suit can prove an earlier date of "first use" of the mark and that it has suffered some sort of damages as a result of the infringement.

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