Exploring Trademarks for the General Reader
A trademark is a name, sign or symbol used in association with goods or services to indicate to a potential purchaser the source of the goods or service We all are familiar with trademarks even if we are not conscious of them and how they work. The most common trademarks known to just about all of us such as Coke, Big Mac, Burger King, Ford, Mac, Coach to name just a few tell us the source of the goods or services associated with their names. But the marks tell us more than just who or what the source is, they tell us what quality of good or service to expect, what price range the good or service is in and much more. These notices which “ride along” with the trademark contribute to the marketing power of the trademark. In effect the trademark becomes the physical representation of the goodwill in the part of the business to which it relates. The importance of the trademark to many businesses cannot e overestimated. COKE is one of the best examples of a business built on a trademark. The public does not know the formula but it is exceptionally well informed on what taste to expect. The public’s expectation of what the trademarked goods will be is the power and importance of the mark to its owner. There is no substitute for that function.
The common law has long recognized the property rights in trademarks and provided protection for trademarks. Because trademark rights exist at common law it is not mandatory to register the marks to make them enforceable. However, Federal and state registration of trademarks enhances the value of the marks and increases the chances of success if it become necessary to resort to the courts to protect the trademark owner’s right.
Trademark registration with the United States Patent and Trademark Office is relatively simple and inexpensive. State trademark registration is also normally simple and inexpensive. Trademark owners should accept every opportunity for trademark registration. Over the years, we have helped many clients obtain trademark registrations to support their business activities. Trademarks are important for non-profits as well as for profit organizations.
Proper trademark use and searching to prevent others from using the owner’s mark or marks too close to the owner’s mark are essential to protect the trademark owner’s right to the mark. Selection of the best mark is an important task for an individual or company and should always be done carefully by giving due consideration to other marks whether or not registered in use in competition and to the existencee of “famous marks.”
Trademarks are potentially renewable in perpetuity if they are kept in use in commerce. Familiar examples of older trademarks are Coca Cola, Kodak, Ford, GE, Beretta, Colt, Levis, Chanel and many, many others.
U.S. trademarks can, by treaty, be registered and maintained in a large number of foreign countries.
Trademark law is a sub-set of unfair competition law which is to some extent now based upon Federal Law, the Lanham Act § 43, and Colorado state law, the Colorado Consumer Protection Act. These statutes offer protection to persons whose marks or business names are damaged by false and misleading statements and acts of others. The statutory remedies may includes attorney fees, costs and treble damages.
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