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It’s important for a business to establish a brand to grow and survive. The communities where a business operates should know what to expect from the business when seeking goods or services. Building a brand creates familiarity with a certain business and, hopefully, loyalty to it’s business, too. Doing so is crucial to a business’s growth in a community and beyond. That’s why it’s important to establish trademark rights. Trademarks and service marks are crucial rights that a business can use to establish its brand.
What is a trademark or service mark? Basically, a trademark is something that is recognizable that a business uses to distinguish itself from others in the marketplace. The legal definition provided by the Lanham Trademark Act, defines a trademark as “any word, name, symbol, or device, or any combination thereof” that is “used by a person,” or “which a person has a bona fide intention to use in commerce” when that person registers the mark with the Patent and Trademark Office. The act also requires that the mark be used “to identify and distinguish . . . goods, including a unique product, from those manufactured by or sold by others and to indicate the source of goods.” The Act provides a similar definition for service marks.
In many cases, businesses attempt to establish marks that a court won’t recognize, mostly because the trademark is too obvious for the goods and services that the business sells. For example, a business cannot have rights in “generic” marks such as “Apple” if it sells apples. Also, legal rights are difficult to establish for trademarks that simply describe the goods or services, such as “Freshest Fish Foods” for a business that sells seafood. However, arbitrary or fanciful marks such as Apple®, when associated with electronics, or Exxon®, a made up word, have strong protection. The line on this spectrum where a certain trademark falls is usually blurred.
If a business wants to establish a brand with effective trademarks, it’s best that they are fully informed. Good legal advice for establishing and protecting a trademark—and thus the brand—is important, but unfortunately, many businesses overlook that important step.
Disclaimer: This article is made available for educational purposes only and is not intended as legal advice. If you have questions about any matters in this article, please contact the author directly.