What is a mark?

A trademark, or "mark," is any word, phrase, symbol, design, sound, smell, color, product configuration, group of letters or numbers, or combination of these, adopted and used by a company to identify its products or services, and distinguish them from products and services made, sold, or provided by others.

The primary purpose of marks is to prevent consumers from becoming confused about the source or origin of a product or service. Marks help consumers answer the questions: "Who makes this product?," and, "Who provides this service?"

As consumers become familiar with particular marks, and the goods or services they represent, marks can acquire a "secondary meaning," as indicators of quality. Thus, established marks help consumers answer another question: "Is this product or service a good one to purchase?" For this reason, the well-known marks of reputable companies are valuable business assets, worthy of nurturing and protection.

The law governing marks essentially is consistent, regardless of the kind of product or service identified, or the nature or appearance of the mark employed. However, marks often are categorized according to the type of identification involved. The most commonly encountered categories aretrademarks, service marks, and trade dress. Trade names are not marks, although a trademark owner should know something about them.


Trademarks

A trademark is a type of mark. Traditionally, the term, "trademark," described only marks designating products, or "goods" (as opposed to services). Increasingly, however, the word is used to describe any type of mark, not just traditional "trademarks."


Service Marks

A service mark is another type of mark. Service marks indicate the source or origin of services (as opposed to goods). For all practical purposes, trademarks and service marks are subject to the same rules of validity, use, protection, and infringement.


Trade Dress

Trade dress also is a type of mark. "Trade dress" refers to the overall image or impression of a product (the product's "look," and "feel"), and/or the way in which the product is packaged and presented to consumers. Generally, only those elements of a product which are nonfunctional (as opposed to functional elements, such as shrink-wrap, or a plain cardboard box); which have acquired a secondary meaning, and which inform consumers about a product's source, are considered protectible product trade dress.


A Note on Trade Names

Trade names are not marks. A trade name is a word, name, term, symbol, or combination of these, used to identify a business and its goodwill. Whereas, a mark identifies the goods or services of a company, a trade name identifies the company itself.

Trade names and marks are related. For example, if one business adopts a trade name similar to a mark used by another, the trade name of the first business may impede the effectiveness of the mark used by the second in identifying the source or origin of goods or services. Consumers may come to believe that the first business makes goods, or provides services, sold by the second. For this reason, conflicts can arise between trade names and marks.

Trade names also can function as marks. Many companies use all or part of their business names as marks on their products, or in connection with their services. When a trade name is used by a company in this dual fashion, it becomes even more important that competing companies refrain from using a similar trade name or mark.


© 1995-2007 Gregory H. Guillot
"All About Trademarks" is a registered service mark of Gregory H. Guillot, PC.