About American Trademark Law

A trademark, according to the U.S. Patent and Trademarks Office, is a legal device which protects “words, names, symbols, sounds, or colors that distinguish goods and services from those manufactured or sold by others and to indicate the source of the goods.” Under American law, trademarks can be asserted and registered by commercial entities and do not expire, or lapse, unless and until that person or corporation stops using them for commercial purposes.

There are several basic types of intellectual property defined in U.S. law, namely patents, copyrights, and trademarks. Although these are generally grouped together as “intellectual property,” they are actually quite different in terms of the specific legal rights granted to owners or holders, the type of material they are designed to protect, and the limitations and restrictions on how the rights may be expressed and protected. Whereas patents exist to protect ideas and copyright exists to protect original works (such as novels, poems, or films), trademarks exist to protect a manufacturer’s right to definitively identify themselves as the source of a given good or service in the marketplace. The basic theory underlying trademark law is that companies in the marketplace should have to compete through building better products and persuading consumers, not through imitating other brands and confusing consumers.

In the United States, trademarks are covered by chapter 15 of the U.S. code, section 1127. It allows for the creation of trademarks by a person (which also means corporation) to “identify and distinguish his or her goods, including a unique product, from those manufactured or sold by others.” The law separates trademarks, which technically are only for tangible goods, from service marks, which are used in relation to the sale of services. Essentially the purpose underlying the two is identical. Trademark law confers an exclusive right to use a given product name (e.g. Apple), a phrase associated with that brand in marketing (such as that company’s old ad campaign, Think Different), or a “device,” or logo, attached to a product (like Apple’s famous apple with a bite mark on the right side). The owner of the trademark can take legal action to stop its use by anyone else with a similar product, on the grounds that they have the right to prevent customers from being confused over the true origin of a product.

Unlike copyright or patent, the law provides no timeline under which trademarks automatically expire. Instead, U.S. law establishes two tests to determine whether a trademark has been “abandoned.” An abandoned trademark is functionally equivalent to an expired patent – the original company no longer has any legally enforceable rights to the term. If a company openly abandons the term, meaning it cannot provide any evidence of using the term in the past three or more years, the trademark can be deemed abandoned. Where patents and copyrights last a certain term regardless of how they are used, trademarks can last forever but only if the trademark owner continually uses it in its commercial activities.

The second method by which a trademark can be abandoned is more complex. The law provides that a trademark can be deemed abandoned by a court if it has passed into general language as a synonym for the product in question. A so-called “genericized trademark” can then be used by any producer, because of the recognition that consumers would use the “trademark” to refer to a product regardless of any manufacturer. Genericized trademarks in use today include aspirin (formally trademarked by Bayer), escalator (formerly trademarked by Otis), and zipper (formerly trademarked by Goodrich). Some trademarks which once seemed destined for generic status, like Xerox, were never ruled as such and have since been partially restored through carefully orchestrated marketing campaigns.