Trademarks

Trademarks

Trademarks Jonathan Poland

Trademarks are used to identify and distinguish goods and services from those of others in the marketplace. Here’s what can typically be trademarked:

  1. Words: This includes brand names, slogans, and any other word that identifies the source of goods or services. For example, “Nike” and “Just Do It” are both trademarked by Nike, Inc.
  2. Symbols and Logos: These are graphical representations that identify a brand. The Nike “swoosh” is a well-known example.
  3. Colors: In some cases, a specific color associated with a product or service can be trademarked if it has acquired a secondary meaning and is non-functional. For instance, the particular shade of purple used for Cadbury chocolate wrappers is trademarked in some jurisdictions.
  4. Sounds: Sounds that distinguish a brand can be trademarked. The MGM lion’s roar and the NBC chimes are examples of trademarked sounds.
  5. Shapes: The shape of a product or its packaging can be trademarked if it’s distinctive. For example, the shape of the Coca-Cola bottle is trademarked.
  6. Scents: While rare, some scents have been trademarked when they are non-functional and serve to identify the source of a product.
  7. Trade Dress: This refers to the overall look and feel of a product or its packaging. It can include features such as size, shape, color, texture, and graphics. For it to be trademarked, it must be non-functional and distinctive.
  8. Phrases and Slogans: Short phrases or slogans that promote or identify a brand can be trademarked. For example, “Have it your way” by Burger King.
  9. Combinations: Any combination of the above elements can also be trademarked. For instance, a logo that includes both words and symbols.

It’s important to note that for something to be trademarked, it typically needs to be distinctive and not merely descriptive or generic for the goods/services it represents. Additionally, the trademark must be used in commerce, meaning it’s used in the sale of goods or services. Lastly, trademark laws and what can be trademarked might vary from one jurisdiction to another. It’s always a good idea to consult with a trademark attorney or expert in the specific jurisdiction where you intend to register a trademark.

Why Trademark?

Obtaining a trademark can be a crucial step for businesses and individuals who want to protect their brand identity. Here are some scenarios when it makes sense to get a trademark:

  1. Brand Protection: If you’ve developed a unique brand name, logo, slogan, or any other identifier for your business, product, or service, trademarking helps protect it from unauthorized use by competitors.
  2. Market Presence: If you’re planning to expand your business or have a significant market presence, a trademark can prevent others from capitalizing on your brand’s reputation.
  3. Franchising or Licensing: If you’re considering franchising your business or licensing your brand to third parties, having a registered trademark can be essential for legal clarity and protection.
  4. E-commerce and Online Presence: With the rise of online marketplaces and e-commerce platforms, having a trademark can help you take action against counterfeit products or unauthorized sellers.
  5. Prevent Confusion: A trademark ensures that consumers can distinguish your products or services from those of competitors, preventing confusion in the marketplace.
  6. Asset Building: Trademarks can become valuable assets. Over time, as your brand gains recognition and trust, the value of your trademark can increase, potentially making your business more attractive to investors or buyers.
  7. Legal Advantage: Owning a registered trademark can provide significant legal advantages in disputes. It can serve as prima facie evidence of ownership and validity, making it easier to enforce your rights.
  8. Geographical Expansion: If you’re planning to expand your business to other regions or countries, having a trademark in your home country can sometimes make it easier to register your trademark in other jurisdictions.
  9. Deterrence: A registered trademark can act as a deterrent, discouraging others from using a similar name or logo, as they’ll be aware of potential legal consequences.
  10. Monetization: Trademarks can be monetized through licensing agreements, allowing others to use your brand in exchange for licensing fees.

However, before pursuing a trademark, consider the following:

  • Cost: Trademark registration involves fees, and defending a trademark can be costly.
  • Research: Ensure that your desired trademark isn’t already in use or too similar to existing trademarks to avoid potential legal disputes.
  • Maintenance: Trademarks require periodic renewals and, in some jurisdictions, proof of continued use.

Given these considerations, if you believe that the benefits of having a trademark outweigh the costs and potential challenges, and it aligns with your business strategy, it might be the right time to pursue trademark registration. While you can obtain a trademark without a lawyer, consulting with a trademark attorney can provide clarity tailored to your specific situation.

How It Works

Registering a trademark with the United States Patent and Trademark Office (USPTO) involves several steps. Here’s a general overview of the process:

  1. Preliminary Search: Before filing, it’s advisable to conduct a search on the USPTO’s Trademark Electronic Search System (TESS) to see if a similar trademark is already registered or pending. This can help avoid potential conflicts and refusals.
  2. Determine Filing Basis: Decide on your filing basis. The most common are:
    • Use in Commerce: You’re already using the trademark in commerce.
    • Intent to Use: You haven’t used the trademark yet but intend to in the near future.
  3. Application Submission: File your application online using the Trademark Electronic Application System (TEAS). There are different forms available (e.g., TEAS Plus, TEAS Standard), each with its own requirements and fees.
  4. USPTO Review: After submission, a USPTO examining attorney will review your application. This can take several months. The attorney will check for compliance with legal requirements and potential conflicts with existing trademarks.
  5. Office Actions: If there are issues with your application, the examining attorney will issue an “Office Action” detailing the problems. You’ll have six months to respond to this action. If you don’t respond in time, your application will be abandoned.
  6. Publication: If the examining attorney approves your application, it will be published in the “Official Gazette,” a weekly USPTO publication. This gives third parties a chance to oppose the registration if they believe it would infringe on their rights.
  7. Opposition Period: After publication, there’s a 30-day window during which third parties can file an opposition to your trademark. If opposed, proceedings will take place before the Trademark Trial and Appeal Board (TTAB).
  8. Registration: If there’s no opposition, or if you successfully overcome an opposition, the USPTO will register the trademark (for an “Intent to Use” application, you’ll first need to show proof of use).
  9. Maintenance: Once registered, you must maintain the trademark. This includes filing specific documents:
    • Declaration of Use between the 5th and 6th year after registration.
    • Renewal every 10 years after registration.
  10. Use the ® Symbol: Once registered, you can use the ® symbol with your trademark. Before registration, you can use “TM” for goods or “SM” for services to indicate that you’re claiming trademark rights.

How long it lasts

The duration of a trademark varies by jurisdiction, but in many countries, a trademark can last indefinitely as long as certain conditions are met. Here’s a general overview:

  1. Initial Duration: In many jurisdictions, including the United States, a registered trademark initially lasts for 10 years.
  2. Renewal: After the initial period, a trademark can typically be renewed indefinitely in successive periods (often every 10 years). However, the trademark owner must continue to use the mark in commerce and meet other renewal requirements.
  3. Proof of Use: To maintain the trademark, the owner may need to show proof of continued use at certain intervals. For instance, in the U.S., between the 5th and 6th year after the initial registration, the owner must file a “Declaration of Use” to confirm the mark is still in use. If not filed, the trademark registration will be canceled.
  4. Non-use: If a trademark isn’t used for a certain period (commonly 3-5 years) without a valid reason, it may become vulnerable to cancellation for non-use. This means other parties can challenge the trademark’s validity based on the owner’s lack of use.
  5. Renewal Fees: Each renewal typically requires a fee. Failure to pay the renewal fee can result in the expiration of the trademark registration.
  6. Other Maintenance Documents: Depending on the jurisdiction, there might be other documents or affidavits that the trademark owner needs to file periodically to maintain the trademark.

Notable Examples

Here are 50 well-known trademarked slogans/phrases and the companies they’re associated with:

  1. “Just Do It” – Nike
  2. “I’m Lovin’ It” – McDonald’s
  3. “Think Different” – Apple
  4. “Have It Your Way” – Burger King
  5. “Open Happiness” – Coca-Cola
  6. “Taste the Rainbow” – Skittles
  7. “Red Bull Gives You Wings” – Red Bull
  8. “The Happiest Place On Earth” – Disneyland/Disney World
  9. “Can You Hear Me Now? Good.” – Verizon
  10. “Because You’re Worth It” – L’Oréal
  11. “Finger Lickin’ Good” – KFC
  12. “Every Little Helps” – Tesco
  13. “Impossible Is Nothing” – Adidas
  14. “Eat Fresh” – Subway
  15. “Save Money. Live Better.” – Walmart
  16. “The Best a Man Can Get” – Gillette
  17. “Snap, Crackle, Pop” – Rice Krispies
  18. “Mmm Mmm Good!” – Campbell’s Soup
  19. “It Gives You Wings” – Red Bull
  20. “There’s No Place Like Home” – Zillow
  21. “Share Moments. Share Life.” – Kodak
  22. “The Quicker Picker Upper” – Bounty
  23. “Like a Good Neighbor, State Farm is There” – State Farm
  24. “The Breakfast of Champions” – Wheaties
  25. “Have a Break, Have a Kit Kat” – Kit Kat
  26. “Melts in Your Mouth, Not in Your Hands” – M&M’s
  27. “What’s in Your Wallet?” – Capital One
  28. “You’re in Good Hands” – Allstate
  29. “America Runs on Dunkin’” – Dunkin’ Donuts
  30. “We Bring Good Things to Life” – General Electric
  31. “When It Absolutely, Positively Has to Be There Overnight” – FedEx
  32. “Connecting People” – Nokia
  33. “Let’s Go Places” – Toyota
  34. “Zoom Zoom” – Mazda
  35. “The Ultimate Driving Machine” – BMW
  36. “Drivers Wanted” – Volkswagen
  37. “Fly the Friendly Skies” – United Airlines
  38. “Don’t Leave Home Without It” – American Express
  39. “Tastes So Good, Cats Ask for It by Name” – Meow Mix
  40. “The King of Beers” – Budweiser
  41. “Where’s the Beef?” – Wendy’s
  42. “Good to the Last Drop” – Maxwell House
  43. “It’s Everywhere You Want to Be” – Visa
  44. “The Few, The Proud, The Marines” – U.S. Marine Corps
  45. “The World’s Online Marketplace” – eBay
  46. “The Snack That Smiles Back” – Goldfish Crackers
  47. “Betcha Can’t Eat Just One” – Lay’s
  48. “Keeps Going and Going and Going” – Energizer
  49. “A Diamond Is Forever” – De Beers
  50. “When You Care Enough to Send the Very Best” – Hallmark

These slogans are designed to be memorable and to convey a particular message or feeling associated with the brand. They play a significant role in advertising and brand recognition.

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