Trademark Law

A trademark is one or more distinctive symbols, pictures, or words that let the consumer know who is providing a particular product.  A trademark promotes consumer confidence and loyalty to a particular provider or brand.  Similarly, a servicemark lets the consumer know who is providing a particular service.  Lindon & Lindon is pleased to obtain and protect its clients' trademarks and servicemarks.

To solidify protection an idea which qualifies as a trademark, a user of the mark can apply to register that mark with the U.S. Patent and Trademark Office.  The trademark may already be in use or be one that will be used in the future.  If managed properly, a trademark and/or servicemark will last forever.  Under some state common law, trademarks are protected as part of the law of unfair competition, and state registration may not be required.

The U.S. Patent and Trademark Office generally will not register the following types of marks:

1.  Matter which is merely the generic name of the goods on which it is used cannot be registered;

2.  The proposed mark consists of or comprises immoral, deceptive, or scandalous matter;

3.  The proposed mark may disparage or falsely suggest a connection with persons (living or dead), institutions, beliefs, or national symbols, or bring them into contempt or disrepute;

4.  The proposed mark consists of or comprises the flag or coat of arms, or other insignia of the United States, or of any State or municipality, or of any foreign nation;

5.  The proposed mark consists of or comprises a name, portrait or signature identifying a particular living individual, except by that individual's written consent; or the name, signature, or portrait of a deceased President of the United States during the life of his widow, if any, except by the written consent of the widow;

6.  The proposed mark so resembles a mark already registered that use of the mark on applicant's goods or services are likely to cause confusion, mistake, or deception;

7.  The proposed mark is merely descriptive or deceptively mis-descriptive of applicant's goods or services; or

8.  The proposed mark is primarily geographically descriptive or deceptively geographically mis-descriptive of applicant's goods or services.

Federal Registration of Trademarks

Trademarks are "badges of origin." 

Trademarks describe the "who and where" of goods and not what the goods are. 

A trademark must be "distinctive" to qualify for registration by the USPTO.  The trademark must be capable of distinguising between suppliers of the goods.  Generally, the more distinctive a trademark is, the stronger its legal effect will be.  Trademark distinctiveness can be ranked into one of the four following categories:

1) Arbitrary or Fanciful: no relationship to the underlying product.  For example, the brands "Lexus" cars and "Kodak" cameras have no direct relationship to their underlying products.

2) Suggestive: indirectly describes a characteristic of the underlying product or service.  For example, the mark "Chicken of the Sea" is suggestive of canned tuna, but the mark does not directly describe the product.  Like an arbitrary or fanciful mark, a suggestive mark is distinctive and can provide trademark protection and be eligible for registration with the USPTO.

3) Descriptive: directly describes a characteristic or quality of the underlying product.  For example, "American Airlines" is the trademark of an airline that provides services to Americans.  "American Airlines," in itself, would not function as a trademark.  However, because "American Airlines" is known from years of advertisement and use, it is now a strong trademark.  The mark has acquired distinctiveness, or secondary meaning with use over time.

4) Generic: the weakest possible trademark - and generally not considered a trademark at all.  For example, a bicycle manufacturer cannot trademark "Bicycle" as the brand name for its product.  However, a manufacturer of playing cards might be able to trademark "Bicycle" as the brand name for its product.

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