DPP Home Business Trademark Yourself: Part 1

Tuesday, April 6, 2010

Trademark Yourself: Part 1

The key to protecting business goodwill

Unlike copyrights, which protect expression of ideas, or even patents, which protect useful ideas and inventions, trademarks and service marks protect something far more ephemeral and intangible: goodwill. Goodwill assures a consumer that products or services they select based upon a mark will be of a certain quality and consistency.

To better understand trademarks, it’s perhaps helpful to understand what can’t be a mark. Titles of single creative works generally aren’t capable of being a trademark. Certain types of national symbols and insignias also aren’t capable of being trademarks. For a relatively brief period of time, Internet domain names could be registered as trademarks; now, however, a top-level domain name (e.g., .com) is generally considered to be generic, although there still are certain rare instances where an Internet domain name could be a mark.
If you’re just starting your business or developing a new brand identity for your business, try to resist the urge to adopt a descriptive trademark. Often, business owners will feel the need to include terms in trademarks that describe what the business does. While this tendency is understandable, it’s also shortsighted because it will limit your ability to prevent competitors from using similar marks.
There’s a common misconception that trademarks are trade names—essentially, business names—or vice versa. This misconception arises, in part, because some businesses are identified more readily by their trademarks than by their corporate name. The appropriate way to think of a trademark is an adjective—hence, describing the source of something, e.g., a Walden’s Photography portrait—while trade names or business names are used as nouns, e.g., “this week at Walden’s Photography....”

Selecting A Trademark
The best time to research and select a trademark is when you’re creating a marketing identity for your business. In many cases, this is right at the beginning when you’re preparing or starting your business.

When considering a potential trademark, there are certain key concepts that must be kept in mind. In addition to thinking of trademarks as adjectives, it’s also important to evaluate the level of creativity associated with a potential trademark. One of the most fundamental concepts in trademark law instructs that the more creative the trademark is, the greater the protection that will be afforded. The converse rules also applies: The more descriptive a trademark is, the less likely it is to identify a particular source, and therefore, less protectable. Marks that are considered to be merely descriptive generally won’t be entitled to protection, and generic terms—which are incapable of describing anything more than the goods themselves—aren’t entitled to any protection (trademarks can even cease to be trademarks through a process referred to as genericide; when a trademark is used as a noun rather than an adjective—as happened with aspirin—the trademarks can become generic and cease to function as marks).

When these concepts are applied to photography-related business, it’s easy to see why the purely descriptive term like “Portrait Studio” wouldn’t be entitled to trademark protection. However, this also highlights a natural tension associated with selecting a trademark: the desire to include some term in a trademark that describes the services associated with the trademark.


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