By Elspeth Crawford
Trademarks are identifying names or symbols that mark a product or service as being uniquely associated with the company which sells or offers that product or service. Two or more companies may sell similar products, but trademarks distinguish one such company from another. Both McDonalds and Burger King sell hamburgers, for instance, but only McDonalds is allowed to mark its food products with the golden arches. Trademarks help build brands, and the law of trademark helps companies hold onto those brands once they become recognizable on a larger scale.
Short words and phrases are not eligible for protection under copyright, but they can be trademarked. Things which are eligible for trademark protection include:
Descriptive, Suggestive, and Arbitrary marks all have something in common: they are presumed to have “secondary meaning.” Secondary meaning is a legal term indicating that a product or service has become associated in the mind of the public with the particular product or service which it represents. When a name or mark has secondary meaning, the owner can claim trademark protection.
How to Get a Trademark
One can get a trademark for a product or service in a number of ways:
No one is required to register for a trademark, but doing so provides certain advantages. For one thing, registration puts those who might want to register their own marks on notice of yours. For another, registration gives you a legal presumption of ownership, so if there’s ever a conflict the law will assume that you are the owner of the trademark and the person who allegedly infringed upon it will have to prove otherwise.
Consequences for Infringement: The penalties for using a mark without the owner's permission can be serious. If you infringe someone else's mark without knowing it, you could have to pay the owner lost profits from the sales of the owner’s goods or services. If you intentionally infringe upon someone else’s mark, you may have to pay all profits you made selling the goods or services that used the mark, plus attorney's fees.