What is a trademark and what can be trademarked?

The term "trademark" is commonly used to describe many different types of devices that label, identify, and distinguish products or services in the marketplace. The basic purpose of all these devices is to inform potential customers of the origin and quality of the underlying products or services.

A trademark is a distinctive word, phrase, logo, graphic symbol, slogan, or other device that is used to identify the source of a product and to distinguish a manufacturer's or merchant's products from others. Some examples are Nike sports apparel, Gatorade beverages, and Microsoft software. In the trademark context, "distinctive" means unique enough to help customers recognize a particular product in the marketplace. A mark may either be inherently distinctive (the mark is unusual in and of itself, such as Milky Way candy bars) or may become distinctive over time because customers come to associate the mark with the product or service (for example, Beef & Brew restaurants).

Consumers often make their purchasing choices on the basis of recognizable trademarks. For this reason, the main purpose of trademark law is to make sure that trademarks don't overlap in a manner that causes customers to become confused about the source of a product. However, in the case of trademarks that have become famous-for example, McDonald's-the courts are willing to prohibit a wider range of uses of the trademark (or anything close to it) by anyone other than the famous mark's owner. For instance, McDonald's was able to prevent the use of the mark McSleep by a motel chain because McSleep traded on the McDonald's mark reputation for a particular type of service (quick, inexpensive, standardized). This type of sweeping protection is authorized by federal and state statutes (referred to as anti-dilution laws) designed to prevent the weakening of a famous mark's reputation for quality.

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