The official definition of a trademark is “any word, name, symbol or device including, but not limited to, a distinctive package or container of any kind, or any combination of these, used by a person to identify and distinguish the goods of that person, including a unique product, from those manufactured or sold by others, and to indicate the source of the goods, even if that source is unknown.” KRS 365.563(1). A trademark is easier understood by considering a single word: source.
Trademarks are granted if a word, phrase, or design is sufficiently specific and original to indicate the source of goods or services. Accordingly, to function as a trademark, the word, phrase, or design serving as the mark must be unique as compared to competitors offering similar goods or services.
Trademarks help both consumers and businesses. They help consumers by providing a quick way to distinguish between similar offerings so as to make purchasing decisions easier. They help businesses by letting a brand name, slogan, or logo quickly identify a source which has developed goodwill with consumers.
Trademark rights prevent the use of identical marks or those so similar in resemblance as to be likely, when used on or in connection with the goods or services of another, to cause consumer confusion or mistake as to source. To use a hypothetical example, trademark law would prevent the registration of “Goggle” as a search engine based on a likelihood of confusion with Google. Unauthorized use of an existing trademark constitutes infringement and subjects the abuser to legal damages.
What can be protected through a trademark:
- A word, group of words, phrase, or text
- A name
- A symbol, image, graphic, or design
- A device
- Shape. Example:
- Coca Cola bottle, federal registration # 1057884
- Color. Example:
- Canary yellow Post-Its, federal registration # 2390667
- Sound. Example:
- NBC chimes, federal registration # 0916522
- Smell. Example:
- Peppermint scent on file folders, federal registration # 3140700
- Touch. Example:
- Leather texture wrapping around wine bottle, federal registration # 3896100
- Shape. Example:
Trademark Synonyms and Use of Symbols
A “servicemark” is the same thing as a trademark except that it distinguishes services, rather than goods. Accordingly, it is placed on items that advertise or promote services (business cards, flyers, websites, etc.). The term “trademark” is often used to refer to both trademarks and servicemarks. Federal Trademark Glossary.
A “mark” is also a synonym for either a trademark or a servicemark. KRS 365.563(3).
A trademark may be registered federally with the USPTO, within a state or multiple states, or remain unregistered and retain only “common law” rights. Common law trademarks exist through use in commerce and without regard to registration. The trademark symbol “™” or the servicemark symbol “SM” may be used on either registered or common law marks. The trademark symbol “®” may only be used on marks that have obtained federal registration.