An overview of trade dress

Trade dress is the entirety of your product and can be used as a trademark. Trade dress is what make your goods unique. It includes all of your products feature’s including shape, size, color, images, etc. Trade dress usually comes in two forms, as a package/label or a product design. In order to protect your trade dress mark it is important that the trade dress be nonfunctional, indicate the source of your goods because it is distinctive, and that use by a competitor would cause confusion. Trade dress that is not inherently distinctive will have to have acquired a secondary meaning in order to be protected. If you have been using the trade dress for a long time, had success selling it, spent a lot on advertising, or even had media coverage then it is possible your trade dress has acquired a secondary meaning. There are many other factors that go into determining whether or not you should use your trade dress as a trademark, but protecting what makes your products standout from the competition is always important.

This blog is not legal advice and is not specific to your application. You should always consult an attorney.

Using color as a trademark

Colors may be trademarked although there are of course limitations. Generally, combinations of different colors that are arbitrary in design are allowed. More issues arise when only a single color is being trademarked. Originally single color marks were not allowed, however this was changed. Single color trademarks can be allowed if the color is not related to the functionality of the goods, this functionality can be utilitarian or aesthetic, and has a secondary meaning. Whether you are looking to trademark a combination of colors or a single color it is important to note the colors cannot be merely ornamental or only define a common shape. The colors will be considered generic, and thus unable to register, if they are part of the good’s function or are used to identify a specific type of product. Colors can help set your brand and products apart from your competitors.

This blog is not legal advice and is not specific to your application. You should always consult an attorney.

What can be used as a trademark?

It is possible to use many different things as a trademark. While not an exhaustive list these are some of the most common: slogans, letters, numbers, foreign language, and designs. Slogans can be registered if they can standalone when not on a label, are not explanatory/informational, are not a familiar expression, and are not just part of a phrase. Numbers and letters can function as very good trademarks when their combinations have no recognizable meaning. If the combination is a recognizable abbreviation and descriptive of the goods, then a secondary meaning will have to be shown. Foreign language trademarks can be registered as long as their translated meaning is not a generic term. It is important to note that when determining confusion with other marks, foreign language marks will only be translated if the average person would know its meaning. Designs can be registered so long as they are not ornamental, background material, or ordinary shapes. A strong design trademark can leave a commercial impression by itself.

This blog is not legal advice and is not specific to your application. You should always consult an attorney.

Can I trademark a Name or Place?

While it is possible to trademark a name or place, there are many limitations. Full names and surnames can only be trademarked if there is a secondary meaning associated with them and as long as you are not infringing on the right of another person using their own name or a company with a similar name. Geographic terms can be trademarked as long as they are not descriptive of the origin of the goods. Like names, if a trademark is deemed geographically descriptive, it may be allowed if a secondary meaning can be demonstrated. A geographic term cannot be used if it would deceptively influence a customer. This means if a customer is likely to think a product is made in a specific area because of the geographic term when it is in-fact not, then the mark will not register. Lastly, even if you register a name or location fair use may allow others to use the name in some capacity. Names and locations can be an important part of your business or products, but be mindful when selecting them as your trademark.

This blog is not legal advice and is not specific to your application. You should always consult an attorney.

Selecting a trademark

Not all trademarks are created equal. Some are better than others and easy to register and protect. Before filing your application there are things you should consider. The viability of a mark can be classified into four categories: generic, descriptive, suggestive, and arbitrary/fanciful. The last category, arbitrary/fanciful, is the most powerful and easiest to register. These are trademarks that have an ordinary meaning completely unrelated to the goods they are on or were entirely made-up specifically to identify your goods, services, or brand. Suggestive marks also offer a high level of protection. They are trademarks which may suggest an aspect of the goods, but still require thought and imagination to make the connection. Descriptive trademarks are marks that convey information about the product. They are harder to register and protect as they require a secondary meaning. A secondary meaning is generally obtained through marketing over time to demonstrate the trademark has acquired distinctiveness. The last category, generic, are common names for goods which cannot function as trademarks.

This blog is not legal advice and is not specific to your application. You should always consult an attorney.

Confused about what a trademark is? Here are the basics!

Many begin the application filing process without fully understanding what a trademark is. A trademark is essentially your brand name. It is what you as a business owner use to identify and separate for your goods or services from your competitors. This is necessary so your potential customers know they are buying from you and not someone else! A trademark can be words, numbers, shapes, slogans, sounds, even a smell. Registration of your mark comes with many benefits. Your trademark can show the origin of your goods, assure customers of the quality associated with your brand, and demonstrate goodwill that you are not merely imitating someone else. In addition, a trademark provides legal protection against someone else using a trademark that may cause confusion, deception, or be mistaken for yours. Your brand and your company are a major investment. A trademark protects that investment and fosters growth.

This blog is not legal advice and is not specific to your application. You should always consult an attorney.