People are very good at identifying trademarks, and can confidently name or point out any number of famous marks. Ask those same people what a trademark is, or why we have trademarks, and they get much less confident. So let’s start from the top and break it down into the basics.
A trademark, at its core, is anything a seller uses to identify himself in the marketplace. There’s a more technical definition that I won’t bore you with here, but that is the essence of it. If a seller uses something consistently enough that consumers see it and say “Oh, that’s from So-and-so!” then So-and-so has a trademark. The something So-and-so uses can be anything from a company name and logo, to a memorable tagline, to a jingle that plays in all their commercials, or even a distinctive smell or color.
The reasons why we have trademark law are simple. Consumers want to know where their goods and services come from. They want to be confident that when they see a movie, it will be good, because it was made by Pixar or Marvel. They want to be sure that when they make popcorn to eat while watching their movie, it will taste good, because it was made by Orville Redenbacher.
On the flip side, sellers want to build a reputation for themselves in the marketplace, so that people will say “I don’t know much about this movie, but Marvel made it, so it must be good. Let’s watch it!” Getting people to buy a product based on the brand name alone is the ultimate goal of any seller. But that can’t happen if anyone can make a cheap knock-off that consumers think is the seller’s and that makes the seller look bad.
And so we have trademark law. Trademark law protects your brand by giving you rights to your unique branding. If someone comes along after you, using a trademark close enough to yours that consumers are confused about the source of the product, then you have the right to go to the courts and make them stop. Of course, whether you are successful depends on how well you chose your trademark to begin with, and registering your trademark can have a big impact on your case.
Hopefully this article gives you a better understanding of trademarks and how they work. If you have any questions, you are welcome to email me at kaway@kawaylaw.com.