Trademark

A trademark is a word, phrase, design, or other feature that primarily serves to identify the source of a product or service (a mark that identifies a service may be called a service mark). Drawing from the principle that consumers have a right to know the source of the things that they buy, most governments have created legal protections for trademarks, allowing the owner of the mark to take legal action against another party that uses a mark without permission. As international trade has increased, countries have entered into various treaties which make it easier for a mark in use in one country to gain protection in others.

Along with patents and copyrights, trademarks represent one of the three primary areas of intellectual property law. The primary differences between trademark and other intellectual property regimes lie in the duration and the scope of what may be protected. While both patents and copyrights issue for a specific, limited time, trademarks can persist without end, so long as the mark is used to identify the goods for which it has been registered, or with which it is used.

Classification of marks by strength

In every system that permits the registration of trademarks, some determination must be made as to whether a proposed mark is registrable. The first inquiry into the registrability of a mark is whether the mark is strong enough to receive protection.

A generic mark, which is merely the name of the product itself, can not receive protection because all competitors must be given the right to describe their goods. A common example is the word "apple". A seller of apples could not use the word "apple" as a trademark, because that seller would then be able to prevent all others from using the word to describe their products. However, nothing prevents a seller of computers from using the name Apple for a brand of computers, as no other seller of computers needs to use the word apple to describe their products. Occasionally, a mark becomes so widely used to designate a type of product (rather than identifying the product with its produce) that the mark becomes generic. Famous examples of registered marks that became generic include escalator and aspirin.

A descriptive mark does not identify the product itself, but rather a characteristic of the product. There are several special categories of terms that are deemed descriptive. Laudatory terms, such as "great" or "best" are generally not registrable as marks. Similarly, geographic terms are considered descriptive, and in some countries are unregistrable under any circumstances. A geographic term that does not correctly identify the source of the product may be deemed "misdescriptive", and denied registration on the basis that it misleads consumers into thinking that a product comes from a region with a reputation for providing quality versions of such a product. Many countries, particularly in Europe, have entered treaties which prevent the misdescriptive use of famous regional names (such as Champagne and Burgundy).

Descriptive marks may become eligible for registration in some jurisdictions if the owner of the mark can demonstrate that extensive use of the mark has led consumers to identify the term with the owner's particular brand.

A suggestive mark hints at the product, but is sufficiently abstract to avoid describing it. A classic example of a suggestive mark is Coppertone.