What Is a Trademark?

What Is a Trademark?

One way to define a trademark is that it's a word, phrase, symbol, or design that helps the market identify and distinguish your goods or services from similar goods and services of everyone else.

The other way to define a trademark is that it's your legal right as someone who offers to the market certain goods and services under a certain word, phrase, symbol, or design to stop everyone else from marketing similar goods or services under a similar word, phrase, symbol, or design.

Essentially, the first definition of a trademark is that it's your identity whereas the second definition is that it's your legal right to your identity. Watch the rest of the video to find out more.

Trademarks Define Your Identity

So let's start with the definition of a trademark as your identity. Once again, it's a word, phrase, symbol, or design that helps the market identify and distinguish your goods or services from similar goods and services of everyone else. The most common types of trademarks are brand names, names of products, names of services, logos, and taglines. In addition to that, in certain cases, sounds, smells, tastes, scents, colors, and 3d shapes can also serve as trademarks.

Aside from different things that can SERVE as a trademark, what's important here is that the trademark is supposed to help the market identify and distinguish your products and services apart from identical or similar products and services of everyone else. I always think of it this way: imagine that your product or your service is sold in a box in a supermarket.

Trademarks: Distinguishing Your Brand

You walk past the shelves and you see a box with your product or your service. And right next to it is ANOTHER box. And in that box, there's a product or a service that your competitor blatantly copied from yours. Theirs does the same thing, has the same features, same benefits, and is sold for the same price. A trademark would be something you could see on the box that would allow you to tell your product or service from your competitors. It could be a name, it could be a logo, it could be a tagline, it could be a distinctive color, a distinctive shape of the box—literally anything as long as it allows the market to tell one from the other.

If your trademark doesn't distinguish your products and services from identical products and services of everyone else, it's not a trademark. That's why you can't trademark generic names. If you sell pencils and just call them "Pencils," when people hear the word pencils, they would have no way of knowing if you're talking about just any pencils or specifically your pencils.

Are There Limits on What I Can Trademark?

For the same reason, most countries limit your ability to trademark descriptive marks. Once again, the idea is that a trademark isn't supposed to let you corner the market of particular products and services. It's only supposed to help you position your products and services apart from everyone else's. That's also why you can't trademark a brand that's too similar to someone else's. Because if you could, how would the public be able to tell your products and services from someone else's?

Also, not every word, phrase, or image is a trademark. It only becomes a trademark if it's used to identify the source of specific products or services. Let's take the word apple for example. By itself, it refers to the fruit, and as such it's not a trademark. But when used in connection with phones or laptops, it is very much a trademark because it is designed to help the market distinguish Apple phones and laptops from all other phones and laptops.

Trademarks Protect Your Brand

You may have noticed that as I was diving into the first definition, I had to delve into what is trademarkable and what isn't. And this actually brings us closer to the second definition of a trademark. Under the second definition, a trademark is your legal right to stop everyone else from marketing similar goods or services under your brand.

A trademark and a registered trademark are not the same thing. A mark may identify commercial source and be protected under the applicable law even before registration. The existence and scope of unregistered rights depend on the country and facts; they should not be dismissed as nonexistent.

Registration can make ownership and enforcement easier to establish, but it does not create an unlimited right to a word or image. Keep the distinction clear: the trademark identifies the source, and registration records rights with a trademark office under that system’s rules.

Registering & Owning Your Brand With Trademarks

A brand name, logo, or slogan can be a business asset before registration. In the United States, qualifying use can establish trademark rights, while federal registration can provide additional territorial benefits and legal presumptions. The effect of use and registration differs by country, and earlier rights can remain relevant.

Registration is not a race that automatically awards all rights to the first person who files. Before investing further in a brand, assess its distinctiveness, clearance results, owner, goods or services, and intended markets. Maintain any registration and evidence of use as required. If you would like help with the process, book a consultation to discuss the relevant options and applicable service terms.

Want to Learn More?

If you just wanted to learn more about trademarks, there's a lot more where this came from, so make sure you subscribe to our YouTube channel. Either way, I hope you found this helpful.

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