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Wherefore Thou Art #11
What's A Trademark?
This confusion isn’t limited to the creative people who call my office. It’s common, as was demonstrated on TV a few weeks ago, when McDonald’s Corporation threatened legal action against the Oxford English Dictionary for including the term “McJobs” in their latest dictionary. The word “McJobs” has, of course, become a commonplace term for low-paying, dead-end jobs. Apparently, however, some McCorporate McLawyers determined that the natural evolution of language, as dutifully reported by the O.E.D., might somehow be altered by a well-worded cease-and-desist letter. Televison anchor Keith Oberman, who seems like a bright enough fellow, asked a legal pundit if copyright law allowed a word like “McJobs” to be trademarked. I sighed so loudly my dog jumped off the couch.
Trademark law protects designations of commercial source, names, symbols, and other things that are used in the marketplace to identify and distinguish one supplier of a good or service from another. Typically, trademarks are names and logos, but pretty much anything that sets one enterprise apart from another can be trademarked. Owens Corning has a registered trademark for the pink color of its insulation products, Coca-Cola for the shape of its bottle, Nike for its swoosh symbol. (Nile has also registered the word “swoosh”). Even distinctive, identifying sounds have been registered (although Harley Davidson was recently unsuccessful in registering the exhaust sounds of its motorcycles, despite its claims that nothing on earth sounds like a Harley hog).
The particulars of trademark law can be perplexing, but here are some simple rules of the road.
How do you know if you’re the first to use the mark? Before starting to use a name, logo or slogan for your business, it’s important to do a search to see if anyone else is using the mark. You don’t want to spend tons of money on signs and advertising to establish your trademark, only to find you have to abandon the trademark because another company’s been using it for twenty years. You can look at the PTO’s online database at www.pto.gov to see if anyone else has registered your mark nationwide; a thorough Internet search (including yellow page database searches) will also give you a good idea if and where anyone is using the mark. Trademark search firms are the best choice, but a comprehensive nationwide search can cost $500-1000.
A trademark provides the exclusive use of a name (and other names confusingly similar to it) for a particular good or service and related goods or services. The size of a trademark’s protective “net,” the universe of goods and services protected by a single mark, is a function of the strength of the mark. The owner of “Acme Explosives Company” probably wouldn’t be able to stop anyone from using “Acme Automobile Company,” because of the weakness of the Acme mark. The public generally isn’t going to think the two companies are the same. Phizer, the owner of the Viagra mark for that little blue pill, could probably stop a different company’s production of the Viagra sports car, because of the strength of the Viagra mark.
Registration also gives you a leg up in the event somebody infringes on your trademark. Your registration creates a public record of your use, and provides numerous benefits, including rights to damages and attorneys fees, should you need to defend your trademark rights in court.
© 2004 Paul C. Rapp
This article originally appeared in The Artful Mind, and is intended to provide the reader with an awareness of copyright law and not legal advice.
