13. What is a Trademark?
A trademark is a form of intellectual property right dedicated to any word, phrase, sign, symbol, logo, color, sound, design, shape, decor, or other distinctive element (collectively known as a “mark”) that represents a business, brand, or commercial activity (sale of the product or services). The trademark allows a consumer to identify the business or commercial activity associated with the mark. That is, trademark rights come about from use of the mark in association with goods or services. Trademark law has two objectives:
• Business Protection – It allows the owner of the trademark to prevent others from infringing upon that business’s identity, and
• Consumer Confusion – It protects consumers from confusion regarding the business or commercial activity represented by the mark.
Businesses seek to secure trademark rights to protect their company, brand, or image. They do not want other companies to benefit from their branding efforts by creating customer confusion as to the source of a given good or service. Even if a customer is not confused, very similar marks can destroy the distinctiveness of a company’s mark, thereby making it less recognizable by customers. As such, enforcing trademark rights is an important tool in securing and expanding a business’s brand. Without trademark protection, competitors could easily detriment a competing brand by mimicking that brand’s mark.
• Discussion: How do you feel about the objectives behind granting trademark protection? How does this compare to the objective of granting patent protection? Can you think of any other benefits that a trademark provides for a business?
• Practice Question: Holly is launching a clothing line. She is weighing the advantages and disadvantages of seeking trademark protection for her company brand. Can you explain to Holly the purpose of the trademark and the benefits to the business and public?