Trademark Rules: What Makes A Valid, Protected Mark?

Trademarks are governed by both state and federal law. They are used to identify and protect words and design elements that distinguish the source, owner, or developer of a product or service. Trademarks can be corporate logos, slogans, or brand names. They are distinctly different from patents and copyrights, which grant the design, process, and invention rights to a piece of property to its inventor. Trademarks do not expire, but their owners must make regular use of them to receive protection.

Explore related products

Understanding Trademark Law (Understanding Series)

$55 $55

Intellectual Property: A Quickstudy Laminated Law Reference Guide

$7.95

Entrepreneur's Guide To Patents, copyrights, trademarks, trade secrets & licensing.

$7.47 $24

Patents, Copyrights and Trademarks For Dummies

$24.98 $29.99

Patent, Copyright & Trademark: An Intellectual Property Desk Reference

$28.45 $49.99

The Complete Guide to Patents, Copyrights, and Trademarks: What You Need to Know Explained Simply

$14.95 $14.95

Trademarks must be used regularly to receive protection

Trademarks are governed by both state and federal law. Originally, state common law provided the main source of protection for trademarks. However, in the late 1800s, the U.S. Congress enacted the first federal trademark law. Since then, federal trademark law has consistently expanded, taking over much of the ground initially covered by state common law. The main federal statute is the Lanham Act, which was enacted in 1946 and most recently amended in 1996. Today, federal law provides the main and most extensive source of trademark protection, although state common law actions are still available. Under state common law, trademarks are protected as part of the law of unfair competition. State statutes vary, but most states have either adopted a version of the Model Trademark Bill (MTB), which provides for trademark registration, or the Uniform Deceptive Trade Practices Act (UDTPA), which does not.

A trademark that is categorized as descriptive is only protectable if it has acquired a secondary meaning in the minds of the consuming public. Secondary meaning is also necessary to establish trademark protection for a personal name or a geographic term. Generic terms are never eligible for trademark protection because they refer to a general class of products rather than indicating a unique source. A mark may be generic ab initio and refused registration, or it may become generic over time through use.

Trademarks are different from patents and copyrights

Trademarks are distinctly different from patents and copyrights. A patent grants the design, process, and invention rights to a piece of property to its inventor. In order to be registered, the inventor must make full disclosure of the invention—the design and the process—itself through the USPTO. This gives the inventor full protection over the product or service in question for a certain period of time—usually 20 years. Anyone can make use of the invention by producing, marketing, and selling it after the patent expires. This is common in the pharmaceutical industry. A drug company that patents a drug has exclusive rights over it for a certain period of time before other companies can market and sell generic versions to the public.

Trademarks, on the other hand, are governed by both state and federal law. Originally, state common law provided the main source of protection for trademarks. However, in the late 1800s, the U.S. Congress enacted the first federal trademark law. Since then, federal trademark law has consistently expanded, taking over much of the ground initially covered by state common law. The main federal statute is the Lanham Act, which was enacted in 1946 and most recently amended in 1996. Today, federal law provides the main and most extensive source of trademark protection, although state common law actions are still available. Under state common law, trademarks are protected as part of the law of unfair competition. State statutes vary, but most states have either adopted a version of the Model Trademark Bill (MTB), which provides for trademark registration, or the Uniform Deceptive Trade Practices Act (UDTPA), which does not.

Trademarks do not expire, but their owners must make regular use of them in order to receive the protections associated with them. Trademarks help distinguish products within the legal and business systems, as well as with consumers. They are used to identify and protect words and design elements that identify the source, owner, or developer of a product or service. They can be corporate logos, slogans, or the brand name of a product. A service mark identifies and distinguishes the source of a service rather than a physical product, although the term trademark is often used to refer to both trademarks and service marks.

A mark is considered to be inherently distinctive if it is categorized as either arbitrary/fanciful or suggestive, and exclusive rights to the mark are determined solely by priority of use. A trademark that is categorized as descriptive is only protectable if it has acquired a secondary meaning in the minds of the consuming public. Secondary meaning is also necessary to establish trademark protection for a personal name or a geographic term. Generic terms are never eligible for trademark protection because they refer to a general class of products rather than indicating a unique source. A mark may be generic ab initio and refused registration, or it may become generic over time through use.

Trademarks are governed by state and federal law

Trademarks are governed by both state and federal law. Originally, state common law provided the main source of protection for trademarks. However, in the late 1800s, the U.S. Congress enacted the first federal trademark law. Since then, federal trademark law has consistently expanded, taking over much of the ground initially covered by state common law. The main federal statute is the Lanham Act, which was enacted in 1946 and most recently amended in 1996. Today, federal law provides the main source of trademark protection, although state common law actions are still available.

Under state common law, trademarks are protected as part of the law of unfair competition. State statutes vary, but most states have either adopted a version of the Model Trademark Bill (MTB), which provides for trademark registration, or the Uniform Deceptive Trade Practices Act (UDTPA), which does not.

Trademarks are distinctly different from patents and copyrights. A patent grants the design, process, and invention rights to a piece of property to its inventor. In order to be registered, the inventor must make full disclosure of the invention—the design and the process—itself through the USPTO. This gives the inventor full protection over the product or service in question for a certain period of time—usually 20 years. Anyone can make use of the invention by producing, marketing, and selling it after the patent expires. This is common in the pharmaceutical industry. A drug company that patents a drug has exclusive rights over it for a certain period of time before other companies can market and sell generic versions to the public.

Trademarks, on the other hand, help distinguish products within the legal and business systems, as well as with consumers. They are used to identify and protect words and design elements that identify the source, owner, or developer of a product or service. They can be corporate logos, slogans, or the brand name of a product. A service mark identifies and distinguishes the source of a service rather than a physical product, although the term trademark is often used to refer to both trademarks and service marks.

If a mark is categorized as either arbitrary/fanciful or suggestive, it is considered to be inherently distinctive and exclusive rights to the mark are determined solely by priority of use. A trademark that is categorized as descriptive is only protectable if it has acquired a secondary meaning in the minds of the consuming public. Secondary meaning is also necessary to establish trademark protection for a personal name or a geographic term. Generic terms are never eligible for trademark protection because they refer to a general class of products rather than indicating a unique source. A mark may be generic ab initio and refused registration, or it may become generic over time through use.

Explore related products

The Creative Shield: The Artist’s Guide to Copyrights, Trademarks & Brand Monetization (Vol. I)

$14.99

Media Law: A Practical Guide (Third Edition)

$47.95 $74.15

The Creative Artist's Legal Guide: Copyright, Trademark and Contracts in Film and Digital Media Production

$24 $20

Kane on Trademark Law: A Practitioner's Guide

$255 $345

The Trademark Guide: How You Can Protect and Profit from Trademarks (Third Edition) (Allworth Intellectual Property Made Easy Series)

$17.7 $19.99

Understanding Trademark Law (Understanding Series)

$26.38 $49

Trademarks are protected under state common law as part of the law of unfair competition

Trademarks are different from patents and copyrights. A patent grants the design, process, and invention rights to a piece of property to its inventor. In order to be registered, the inventor must make full disclosure of the invention—the design and the process—itself through the USPTO. This gives the inventor full protection over the product or service in question for a certain period of time—usually 20 years.

Trademarks are governed by both state and federal law. Originally, state common law provided the main source of protection for trademarks. However, in the late 1800s, the U.S. Congress enacted the first federal trademark law. Since then, federal trademark law has consistently expanded, taking over much of the ground initially covered by state common law. The main federal statute is the Lanham Act, which was enacted in 1946 and most recently amended in 1996.

If a mark is categorized as either arbitrary/fanciful or suggestive, it is considered to be inherently distinctive and exclusive rights to the mark are determined solely by priority of use. A trademark that is categorized as descriptive is only protectable as a trademark if it has acquired a secondary meaning in the minds of the consuming public.

Trademarks must be inherently distinctive to be protectable

Trademarks are protected by both state and federal law. To be protected, trademarks must be used regularly. They are used to identify and protect words and design elements that distinguish the source, owner, or developer of a product or service. Trademarks can be corporate logos, slogans, or the brand name of a product.

Generic terms are never eligible for trademark protection because they refer to a general class of products rather than indicating a unique source. A mark may be generic ab initio and refused registration, or it may become generic over time through use.

State statutes vary, but most states have either adopted a version of the Model Trademark Bill (MTB), which provides for trademark registration, or the Uniform Deceptive Trade Practices Act (UDTPA), which does not.

Frequently asked questions