Trademarks are distinctive indicators used to distinguish the source of goods or services. The term “trademark” is often used broadly to refer to:
- service marks – marks used in connection with the offering of services;
- trade dress – distinctive attributes of product shape or packaging or style of doing business; and
- trademarks – marks used on tangible items.
Consumers rely on trademarks to vouch for the source and quality of the associated services. At least as early as the Middle Ages, guild marks were used by craftsmen to certify the source of goods. Typically, trademarks are comprised of words or designs or a combination of both. There are also unconventional trademarks based on color, smell, or sound. A common denominator among all trademarks is distinctiveness, the ability to signal to consumers that the trademark serves the primary purpose of indicating source.
Trademarks are protected under the common law, although additional and valuable protection arises from federal registration. The United States Patent and Trademark Office issues trademark registrations using an application and examination process overseen by an examining attorney. Applications may be filed based on actual use or a bona fide intent to use the mark in commerce. Following successful examination, which may involve legal argument and factual presentations, the application is generally published to allow third-parties to object to the application on grounds that the examining attorney failed to consider or properly weigh all of the evidence. If no opposition is filed, or following the successful defense of an opposition, the application will proceed. Applications based on actual use will become trademark registrations without any intermediate step. Applications based on an intent to use, will be “allowed,” but no registration wil issue until proof of actual use is filed.