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22 Interesting Facts about Trademarks

Brett J. Trout

What is a trademark? A trademark is something used by consumers to identify the supplier of a particular product or service.  Trademarks are a type of “intellectual property,” but are very different from other types of intellectual property like patents and copyrights. 

Here are just a few of the unusual facts about trademarks (although the following refers only to products, trademarks may also apply to services):

1. For many companies, their most valuable asset are their trademarks. The value of Apple’s trademark has been estimated to be in excess of half a trillion dollars. 

2. Unlike with patents and copyrights, in-gross transfers of trademarks are not allowed. You may only transfer trademark rights if you also transfer the goodwill associated with the business the trademark represents. 

3. For the protection of consumers, you may lose your trademark if you license the trademark to someone without monitoring the nature and the quality of the goods they offer under that trademark. 

4. Whereas congressional power to regulate patents and copyright derives from the specific Intellectual Property clause in the Constitution, courts have to rely on the Commerce Clause to find congressional power to regulate trademarks.

5. Unlike patents and copyrights that will naturally expire after a fixed amount of time, trademarks can potentially last forever

6. If you fail to enforce your trademark, it may become generic, meaning anyone can use it. Very valuable trademarks like escalator, aspirin, and yo-yo all became generic due to their owners’ failure to stop people from using the trademarks to describe the general class of products

7. In addition to words and logos, you may also trademark colors, sounds, and scents

8. You may not trademark the functional aspects of your product 

9. You may obtain a trademark on made-up words (eBay), arbitrary words (Royal, but applied to something unrelated, like gelatin), suggestive words (NoDoz), and even descriptive words if the public has come to associate the word with a single producer (American Airlines)
You may not obtain a trademark on merely descriptive words that have not acquired distinctiveness (red for apples) or on generic words (apple for apples) 

10. You only obtain trademark rights by actually using the trademark to promote your goods or services


11. Trademarks must always be used as an adjective modifying a noun, never as the noun itself. 

12. Use of the TM symbol does not require any paperwork. It merely suggests the owner is asserting trademark rights in the word. The TM is not an indication that the word is a valid or enforceable trademark.

13. Use of the ® symbol is strictly regulated and only available for federally registered trademarks. Use of the ® on unregistered marks can lead to severe penalties.  

14. When you obtain trademark rights you only obtain trademark rights association with the product your trademark is promoting
15. If your trademark is famous, you may be able to use it to stop others from diluting the value of your trademark by using it on other products. 

16. Two companies may own the same trademark for different products (Apple for computers and Apple for power tools). 

17. Once you have a trademark, you will lose that trademark if you stop using it to promote your goods and/or services

18. Once you start using your trademark to promote your product, you have what is known as a “common law” trademark

19. Common law trademark rights extend only to the extent of their market penetration. 

20. You may obtain trademark protection throughout a state with a state trademark registration

21. You may obtain trademark protection throughout the country with a federal trademark registration

22. You may obtain international protection through various international trademark registrations 

The reason we have trademarks is to allow consumers to associate certain goods with the companies that provide them and to prevent competitors from trying to confuse consumers on a product’s source or origin. To avoid a potential trademark infringement lawsuit and to build equity in your trademark it is a good idea to enlist a specialized “intellectual property lawyer” to discuss potential trademarks and to vet and register the trademarks you eventually choose.   

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