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What Are Trademarks?

The purpose of trademarks is twofold. First, a business uses its trademark to generate brand recognition and confidence in the consumers who make up their potential market. Second, a business uses its trademark to protect its hard-won brand recognition and consumer confidence. The trademark provides this protection by preventing other companies from marketing their products or services in a manner that could lead consumers to mistake the infringing company's products or services for those belonging to the trademark holder.

A trademark is a word, phrase, picture, symbol, form, sound, color, or any combination of these attributes - a product name, logo, mascot, etc. - which is used to "mark" a company's products or services.

But trademarks are not trade names, and they are also unrelated to protections provided by copyright. A trade name is simply the name of a business, such as "Joe's Hot Sauce, Inc." If the name of the sauce that Joe bottles and sells is called "Joe's Hot Sauce," then his company name can be trademarked. If, instead, the sauce he sells is called "Red Hot Death," then Red Hot Death can be trademarked, but Joe's Hot Sauce cannot. And, concerning copyright, if Joe writes a novel or composes a song about hot sauces, he can apply for a copyright on that book or song. Copyright applies to the protection of the "authorship" of an original idea in a tangible medium. It is not related to the protection of a product or service.

Ownership of a trademark is not contingent on official registration of the trademark, although registration is strongly recommended. Ownership of a trademark is based on first use, referred to as "first-in-time." The first business to use a trademark in the open market is awarded common law protection for that trademark. This means that even though the business or individual did not officially register the trademark, that business or individual can sill prevent others from using the same trademark.

For a new business, it is extremely important to research your design for a potential trademark, to determine if that design is already in use, before you invest in the full development and implementation of that trademark design. And, although trademarks are protected by "first-in-time" common law, it is good business to invest in registration of your trademark to obtain the maximum breadth of protection that is possible under the law.


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what are trademarks?