How to Identify a Trademark

By Karyn Maier

According to the United States Patent and Trademark Office, a trademark is essentially the same thing as a brand name. It may consist of a word, phrase, symbol or any combination thereof to establish an association between the mark and a particular product, service or celebrity. In effect, it helps the consumer distinguish one manufacturer from another. Because a trademark is unique by design or suggestion, it stands apart from generic words and symbols, making it easy to identify.

Trademark Symbols

Technically, a trademark does not have to be registered with the federal government to exist, although there are benefits to registration. An unregistered trademark that contains a word, phrase, slogan or product name is identified by the letters TM or SM immediately following it, usually in superscript. The TM designation means a mark that applies to goods, while the letters SM stand for "service mark," to indicate a trade or service used in commerce. If the trademark is registered, the letter R appears in a circle.

Marks of Distinction

The most distinctive trademarks identify the source of goods or services by association or suggestion, as opposed those that describe a product or make a generic reference to it. For example, “Apple” is a successful trademark because it refers to a brand of computer, but it wouldn’t cut it as a brand name for the fruit of the same name.

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Other Identifying Elements

Even in the absence of TM and the registered trademark symbols, it’s still fairly simple to identify a trademark by its presentation. Unique spellings and capitalizations point to a trademark, as in “Brite-Lite” and “LITE-BRITE”; the former represents a distributor of electronics, and the latter represents a child’s toy.

Case Study

The standard practice is to treat the mark as an adjective, not a verb or noun, a lesson taught to the Otis Elevator Company in the landmark case, Haughton Elevator Co. v. Seeberger. In 1900, an employee of the company named Charles Seeberger secured U. S. trademark No. 34,724 for the word “Escalator,” the brand name given to his newly invented moving stairway. Unfortunately, because the company often used the word in advertisements to refer to "an Escalator," as opposed to an "Escalator brand moving stairway," the word became associated with the actual device rather than its source, the manufacturer. As a result, the company lost all rights to the trademark in 1950 and the word remains in the public domain today.

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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.

Are Company Slogans Copyrighted?

Federal copyright law grants exclusive rights to the use of “original works of authorship,” whether or not they are published. Copyright law protects a broad range of works, including books, poems, songs, paintings and even computer programs. However, copyright law normally does not protect short phrases, such as a company slogan. Trademark law, on the other hand, specifically protects slogans that companies use to identify themselves as the maker of a product.

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.

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