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.

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.

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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.

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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