Understanding Trademark Categories

The United States government provides us with the opportunity to protect our products and creative ideas with copyrights and trademarks. When you come up with an creative idea for a symbol or mark, you should consider getting a copyright for it so that you can benefit from your creativity. However, when you apply for a trademark, you should realize that there are different prerequisites that your mark must fulfill in order to get a trademark.

First, a symbol must have a certain degree of creativity before you can apply for legal protection for it. A generic description like "car" or "cereal" is a something that we use to identify an object, not just identify a particular brand of object. For example, "Apple" would not be a satisfactory trademark for a apple fruit producing company. However, when applied to computers, "Apple" is a creative way to label a business that produces computers, not fruit. Sometimes, though, a term can lose its creativity as a term becomes more commonplace, and can possibly lose its trademark.

Next, to determine if a symbol deserves a trademark, copyright courts place it into four categories: arbitrary, suggestive, descriptive, and generic. These are in the general order of creativity, with arbitrary marks being the most distinctive. As mentioned above, generic marks hardly ever receive legal protection from trademark and copyright courts.

An arbitrary mark is often called a fanciful mark because it has absolutely no relation to the product with which it is associated. This can often be the most successful type of symbol since it can become engraved in consumer's mind that a "swoosh" mark somehow embodies Nike and all of its products. Because these marks are so distinctive, they are typically given more protection than others.

Next, a suggestive mark is not directly tied into a product or company, but it somehow associates itself with the business or item. For example, the North Face company creates backpacks and jackets and other such outdoor products, and their symbol is somewhat reminiscent of a mountain. While the North Face's products aren't just for mountain climbers, the symbol conveys an idea of ruggedness and warmth for the coats.

Descriptive marks are more linked to their companies or products. Because this can walk the line between generic and actually information, descriptive marks or slogans generally must fulfill a another characteristic, secondary meaning. This means that although a phrase might be able to describe a number of different products, this symbol or slogan has come to be specifically associated with a particular company in the minds of the consumers.

Obtaining a trademark for your company can be an important part of protecting your creativity and products. If you or someone you know needs help with the legal aspect of receiving a trademark or copyright, talk to the business lawyers at Skjold - Barthel today.

Joseph Devine

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