What is a Trademark?

Bill NaifehIntellectual Property - General

A trademark is a legal mechanism which gives the owner the right to use a word, name, or symbol to identify and distinguish goods of the owner from goods manufactured or sold by others.  Trademarks are also used to indicate the source of the goods. In short, a trademark is a brand name.  A service mark is similar to a trademark, except that it identifies and distinguishes the source of a service rather than a product.

In the United States, trademark rights are actually established by state common law.  Under common law, in order to establish an owner’s right in a trademark, the trademark must be used in commerce within a particular geographic area.

Trademarks can also be registered on state and federal registrars.  Federal registration has a number of advantages, including:

  • Filing a trademark before the actual use (although many states also allow filing before use);
  • Greater Geographic Area;
  • Use of the Federal Court system to enforce the rights;
  • Federal registration can be the basis for filing internationally; and
  • Enforcement from the U.S. Customs Service.