How Trademarks Are Protected

Trademarks are a key part of a business’s brand and identity, and can provide businesses with important protection against competitors trying to take advantage of their hard work. trademarks can be words, logos, slogans, packaging designs, or other source indicators for a particular product in which case it is considered a “service mark” or product line. For example, OREO is a word mark for cookies; the design of a leaping deer is a logo for construction equipment; HAVE IT YOUR WAY is a slogan for hamburgers; and the Coca-Cola bottle and label are a package design mark.

A strong trademark is one that is completely original, or that has a unique use. For example, Apple Technology is a good strong trademark because nobody else was using the name “Apple” for technology products before Apple created its own branding. In addition, the Xerox brand is a strong trademark because no other company had a similar name at the time it was created.

Another key factor in trademark strength is whether it will be able to distinguish its owner’s goods or services from others. Descriptive marks, laudatory words, geographically descriptive terms, or surnames are usually not very strong. A descriptive mark may also be found to be generic, and will therefore lose its trademark protection, for instance when the term PARK & FLY becomes synonymous with airline parking services (descriptive of the product itself), or when ASPIRN or CELLOPHANE become generic for aspirin or cellophane, respectively (descriptive of a genus, not of specific products).

Finally, a trademark can become weaker over time through genericity, or when it is used in connection with particular kinds of goods or services, for example when the word “cellophane” began to describe a type of plastic film rather than denote a certain brand. In order to maintain trademark rights in a mark, it is critical that the mark be actually used in the course of trade with respect to the identified products or services, and that the mark be used as a badge of origin for those goods or services.

When using the ® symbol, it is advisable to place it on the first appearance of the mark in any printed material. The use of the mark should also be accompanied by a statement indicating that the mark is a registered trademark, and that the owner of the mark has the right to exclude others from using it in connection with the identified products or services.

For online marketing, it is typically advisable to include the symbol in a header or footer on every page of any site that contains the mark, and at the beginning of any text that describes or uses the mark. The trademark symbol should not be overused, however, as it can cheapen the look of a mark and does not add any legal protection.

In addition, any trademark that is not actively used for a period of time – normally five years after registration – will be subject to removal from the register. In addition, non-use can also be a defence in an action for trademark infringement, and can even be grounds for losing a registered trademark.