What is a Trademark?
Generally speaking, a trademark is a word, symbol, phrase, or device that uniquely identifies a particular company or individual. There are many types of bottles used to contain soft drinks, for example, but only one with the distinctive logo and design of Coca-Cola®. Each element of a Coca-Cola® bottle — the shape, red imprint, and name — could be considered a trademark of the Coca-Cola company. Because all of these elements have been legally registered with the United States Patent and Trademark Office (USPTO), no other soft drink company can create a similar bottle.
This same philosophy holds true with distinctive slogans or brand names. A photocopying machine is not a trademark, but Xerox® is. Any product bearing the name Xerox® implies the same level of quality as the original product. Sometimes, a brand name becomes so popular that it replaces the generic description of the product. Consumers shop for Q-Tips® instead of cotton swabs, for instance, even though the name is a registered trademark of the Johnson and Johnson company. Other trademarks that have become universal include Jacuzzi®, Band-Aid®, and Crayola®.
A trademark should be registered with agencies such as the United States Patent and Trade Office for maximum legal protection. The law works much like copyright law in the sense of first rights. Once a company or individual successfully registers their word or phrase, which can be done online at the official USPTO website, a circled "R" or the abbreviation "Reg. TM" can be legally printed on the product or slogan. There is no "pending" condition like there is for applications for patents, which may take years to process through the USPTO.
Sometimes, the criteria for registration can be challenging to understand. Companies and individuals cannot simply register ownership of common words or phrases, but they can turn a distinctive combination of words into a trademark. The Nike® shoe company has a legal right to the phrase "Just Do It" because the words have become an identifiable slogan. The swoosh, as simple as it may appear, is also a registered trademark. This doesn't mean, however, that another company can't use a stylized check mark, but must not be designed so that it could be readily confused with the swoosh logo owned by Nike®.
Companies and individuals who have registered a trademark will usually pursue many legal avenues to protect it. Courts must decide if the unauthorized use of a trademarked slogan or product by others has caused actual damage in the marketplace. A local restaurant featuring fried chicken, for example, cannot use the image of an elderly man in a white suit as its official logo. This would create confusion with the registered trademark of Colonel Sanders owned by KFC™. It would be legal for the local restaurant to say "If Mr. Sanders ate here, he'd be a General," however. The law does not protect individual words, just the entire phrase or symbol.
@anon36804 - Possible, it depends on how the court views it. Sometimes it's enough of a bother that the company will settle out of court anyway. If you're going to do something about it, make sure you consult a few legal professionals first, as you don't want some lawyer taking you for a ride so that they can collect on the court fees rather than because they think you have a shot at winning.
@anon26830 - I believe it depends on what exactly you're doing with the product. If you're using the raw components (like, for example, using glass recycled from coke bottles) then you should be fine to do whatever you like. If you are taking advantage of a process developed by another company (for example, using Coca Cola to make slushies) it gets a bit more murky.
I know you absolutely cannot use Coca Cola to make slushies, then advertise those slushies with Coke's name. But I'm not completely sure if you can use Coke syrup to make and sell slushies if you've not made people aware that the slushies are made with that particular brand of cola.
It's a dangerous game though, as big corporations tend to be trigger happy with trademark infringement so I would double and triple check before doing anything.
@anon17249 - You are better off consulting a patent lawyer to see what you need to get done to protect your work. I know with a lot of creative artworks, like paintings or writing or music, just making the piece is enough to protect it as your work (authors don't need to register a copyright for example) but I'm not sure how that would apply with a board game.
I'd imagine anything like the title of the board game, or any specific color combinations or slogans would be considered a trademark and need to be registered, but the art and game techniques might not be. Or maybe they do. It's complicated and you're better off talking to a professional trademark attorney.
@JackWhack – Prices vary depending on what kind of trademark you are registering, but I have a friend who paid nearly $300 to register his trademark. He did this directly through the USPTO.
There are many lawyers out there who will charge you much more than this to help you with the process, but you can do it on your own. You can search the trademark database without any help from an attorney.
It takes awhile to complete the paperwork. Of course, everything goes more quickly if you do it online. My friend actually visited the Trademark Public Search Library to do his research, but you can get all the information you need from the website.
I'm starting a graphic design business, but I have no idea how to register a trademark. How much does it cost? Is the process lengthy and complicated, or can I do it easily from home?
@shell4life – I think that they would be allowed to use different shades of red, but they couldn't use the same red as Coke uses. I drink a generic version of Mountain Dew, and though it has a green label like the original, it isn't the exact shade of green that they use.
With sodas, I think it helps to bear some resemblance to a trademarked product. You can only get away with so much, but you do need to let customers know what your product resembles.
However, with foods like potato chips and cookies, I have noticed many generic brands using white packages and labels. I guess this sets them apart from the brand name products. You can pretty much tell how they are going to taste by what they have in them, but it isn't this way with soda, so having a certain likeness to a trademarked brand helps.
I knew that names and logos were protected, but I didn't know that colors were, as well! I think it's kind of strange that soda companies can't use red labels on their bottles, even if their logo design is nothing like that of Coca-Cola.
I had never thought about it until reading this, but the store brand of soda that is made to resemble Coke and is sold where I get my groceries has blue labels with white and red markings on them. It would be hard to confuse all that blue with the red of a Coke bottle.
If I were to design an image on a short, or certain words, will I be able to trademark it, or would they be considered too common to copyright or trademark?
I own copyrights to a music label name, recently I found out there is another group that is about to release a album with our name but on a major recording label. Do I have something?
I am in the works of setting up a small business with the name Kel Fab Creations. My business is offroad metal fabrication. I would like to use the acronym KFC on my products. I have a KFC logo drawn up and it is not the same font as Kentucky Fried Chicken. Would I be infringing on Kentucky Fried Chicken's trademark even though I am in no way a competing restaurant? thanks for any help.
I have a question, can I take a product made by another company, that has this company's logo on it and use it to produce something totally new and that is not in competition with the original product or in competition with any of the activities the "original" company?
Do we need to get a patent for a new design in a original board game?
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