trademark primer

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what are trademarks

According to the Merriam-Webster online dictionary's main entry, a Trademark is:

  1. a device (as a word) pointing distinctly to the origin or ownership of merchandise to which it is applied and legally reserved to the exclusive use of the owner as maker or seller
  2. a distinguishing characteristic or feature firmly associated with a person or thing [derringers... became almost a trademark of gamblers -- Elmer Keith] [wearing his trademark bow tie and derby hat]

In terms of your business, a trademark can be any word, name, symbol (logo) or device (sound, color, smell) -- or some particular combination of words, symbols and/or device -- that identifies and distinguishes goods made and sold by you from those of another. In the same way, a service mark identifies and distinguishes your service from that of another.

Both trademarks and service marks are governed by trademark law and either may be referred to as a "mark." (However, while it's acceptable to refer to a service mark as a trademark, the reverse is not true.)

A trademark indicates the source of goods or services, even if the actual source is not generally or specifically known. In other words, if you know that BEANIE BABY stuffed animals are a particular kind of stuffed animal made by a specific manufacturer -- not just a type of stuffed animal -- then the name BEANIE BABY is functioning as a trademark, whether or not you know the name of the company that makes it.

While most commonly a trademark is a word, a combination of words, or a graphic mark (logo design), a trademark can also be any other device capable of identifying the source. It can be a sound: think of a distinctive chime used by a radio broadcaster as part of its station identification. It can be a color, as in pink (not white, not gray, but pink) insulation. In one instance, a distinctive smell became a registered trademark.

The constant of a trademark is that it is used to identify, distinguish, and indicate the source of goods or service.

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