For about 8 years, there has been a belief that it was safe for a company to sell an item or offer to sell an item without first filing a patent application as long as the sale or offer for sale was under a non-disclosure agreement so the sale would be secret and not public. This month, the United States Supreme Court in a unanimous decision said NO in Helsinn Healthcare S. A. v. Teva Pharmaceuticals USA, Inc.
Is it Time to get a Trademark?
If you own a computer there’s a chance that at some point you have encountered Internet marketing (if you haven’t, I’m not real sure what you’re doing with you computer). It seems like every website I visit is pushing some sort of product or service. With so many marketers possessing an online presence, it is not uncommon for me to field questions from clients wondering what they can do to protect their brand. This is when I usually open the conversation about trademarks, and whether a trademark is a good idea for that client’s business.
In general terms, a trademark tells the consumer something about a good. It might indicate where the good originates or who produced the good. Trademarks take various shapes and sizes; they can be names, symbols, words, sounds, even the particular way a product is packaged. Basically, trademarks evoke a brand’s reputation in the minds of consumers. The same applies for services, although the sticklers refer to trademarks for services as “servicemarks.”
What does it do, and how do you get it?
The benefit of having a trademark is that trademarks provide businesses a mechanism by which prevent other businesses from adopting confusingly similar names or marks that my potentially play off the reputation of the original business. It takes a long time to earn a good reputation. A trademark helps prevent the new guy from coming to town and calling his brand of luxury car Nercadies. It is possible to enjoy some level of trademark protection by doing nothing. Common law trademarks protect brands in your local area. However, by choosing to file with the United States Patent and Trademark Office (“USPTO”) trademark protections can extend nationally.
What content is Trademarkable?
Before you can get excited about trademarking your business name or logo, there needs to be something distinctive about that name or logo. The level of protection a mark receives is linked to its level of distinctiveness. Arbitrary or fanciful marks receive the highest level of protection. These are marks that have no logical connection to the products or services associated with them. Think: naming a computer company after fruit. The next category, which receives a lesser degree of protection, is suggestive. Suggestive marks describe the product or service they are associated with, but do so in a way that forces the consumer to make the mental connection. For Example, Greyhound describes a bus company that is fast . . . like a greyhound. The last category is descriptive. Descriptive marks simply describe the product or service. If you go to Huge-Burger, you expect the burger to be big. Unlike arbitrary, fanciful, and suggestive marks, descriptive marks do not automatically receive trademark protection. Secondary meaning must first be established, which is accomplished over time through widespread recognition of the mark.
A trademark is a great place to start for a business looking to protect its brand. By register a mark now, a business gives public notice across the country that the mark is in use. It’s a government approved method of saying “I was using it first, knock it off.” Additionally, evidence of a prior registered mark, is extremely beneficial should a trademark dispute arise.