What Is Trademarkable? Colors, phrases, and even names

Trademark protection may do more than just prevent others from utilizing your company’s name and emblem. Discover which aspects of your company may be trademarked.

Here’s what we’ll talk about:

What kinds of things may be trademarked?
Do all trademarks have the same level of protection?
How can I ensure that my trademark is protected?

Trademarks are quite adaptable. A trademark, according to the United States Patent and Trademark Office (USPTO), is a term, phrase, symbol, or design that identifies and differentiates the source of one party’s products from those of another. This technical definition, however, just touches the surface of the enormous pool of prospective trademarks.

What kinds of things may be trademarked?

Almost anything may be registered as a trademark in the United States, as long as it identifies a source of products or services and is utilized in commerce. This may contain your company name, product names, logos, and other elements. A trademark’s fundamental limits are that it must be generic or descriptive. Generic trademarks are those that employ a common term to describe a product and are not protected under trademark law. SOAP, a brand of cleaning product, is an example of a generic trademark. Descriptive trademarks are exceedingly difficult to defend since they essentially define a feature, function, purpose, or attribute of the product. A descriptive mark is SUDSY for bath soap, which defines a well-known property of bath soap, namely that it produces suds or bubbles.

The sky is the limit after that. Several trademarks that seem virtually strange have been approved by the USPTO and the courts. The design of a Coca-Cola bottle, the NBC jingle, and even a specific fragrance for sandals trademarked by a Brazilian footwear manufacturer are all examples.

Do all trademarks have the same level of protection?

Since not all trademarks are created equal, not all trademarks are eligible for protection. The scope of trademark protection is determined by the strength of the trademark, which is determined by its uniqueness. The USPTO often considers various elements while determining strength. Random or whimsical markings are given the maximum protection, whereas generic marks are not.

At one extreme of the range are arbitrary and whimsical trademarks. Even though they are common terms, they are incredibly unique. Apple’s trademark, for example, is regarded arbitrary and fanciful owing to the setting (electronics and software) in which it is utilized. Fanciful marks are made-up terms like EXXON, VERIZON, or KODAK.
Suggestive phrases are protected to a lower extent than arbitrary trademarks. These markings may imply a connection between the mark and the goods, but the buyer must make a mental leap or use their imagination to link the two. For example, JAGUAR for automobiles or COPPERTONE for tanning lotion.
In general, descriptive and generic phrases are not protected by trademark law and cannot be registered. The only exception is when a descriptive trademark is used for a long length of time (typically at least 5 years) and becomes linked with the firm that creates the product rather than the product itself. It may be registered with the USPTO in these restricted circumstances.

How can I ensure that my trademark is protected?

Trademark protection is not without limits. A trademark owner may lose his or her trademark if it is widely used and becomes a generic word for the product. This is what happened to trademarks like Nylon, Aspirin, Xerox, and Band-Aid. These trademark names were first protected, but they became widely associated in the minds of customers as a shorthand description of the product, and therefore generic, resulting in the loss of trademark protection.

The difficulty is often not what may be trademarked, but how it can be registered in the first place. A trademark may be kept alive in commerce by regularly utilizing it to market or sell a product or service. Making visible steps to preserve it may result in a trademark being maintained despite the term being widely used. For example, the mark should be used as a stand-alone brand name rather than a verb, and the ® or TM symbols should be clearly displayed, as in “we recommend a Google ® search engine” rather than “please google this word,” or “Adobe’s Photoshop® is a premier graphic design software” rather than “I’ll Photoshop this picture.” Businesses must be proactive in regulating and prosecuting non-authorized use of their trademarks in these circumstances, which will enhance their trademark rights. Submitting a Stop and Desist Letter is often the initial step in preventing illegal usage.

In actuality, Google and Adobe did not prevent the use of “to google” as a synonym for online search or “to photoshop” as a shorthand for digital picture editing. Yet, they monitor their usage of these phrases and continue to use them internally as valid trademark terms. As a consequence of their ongoing efforts to preserve and defend their trademarks, the words have remained to be legally protected.