In order for a trademark to benefit from trademark protection, two basic conditions must be met: it must be used in commerce and it must have distinctive character. Unregistered trademarks may also be protected at the state level by statute and/or common law. Under state common law, trademarks are protected under unfair competition law. State laws vary, but most states have adopted either a version of the draft Model Trademark Law (MTB) that requires trademark registration or the Uniform Misleading Commercial Practices Act (UDTPA), which does not. The rules for federal trademark applications are codified by the Lanham Act and Title 37, Part 2 of the Code of Federal Regulations (CFR). The United States Patent and Trademark Office (PTO) actively reviews trademark applications and oversees trademark registrations with the assistance of the courts. If an application for registration is rejected by an examiner, the applicant has six months to respond to or amend the application, which is then re-examined. This procedure may be repeated until (1) the examiner issues a definitive refusal of registration or (2) the applicant does not respond, amend or appeal for six months. See, e.g., 15 U.S.C. § 1062; 37 C.F.R. §§ 2.61 – 2.69. A term used in experiments when a piece is presented and the clerk is asked to mark it with a shadow or letter so that it can be identified later. Trademarks are generally words, phrases, logos and symbols used by manufacturers to identify their products.
But also shapes, sounds, scents and colors can be registered as trademarks. See Qualitex v. Jacobsen Products Co., Inc., 514 U.S. 159 (1995). In recent years, trademark law has expanded to include trade dress and protection against dilution. Almost any word, name, symbol or device to distinguish the origin of goods can be used as a trademark with few restrictions. However, a trademark`s eligibility for trademark protection may be limited by the application of the functionality doctrine, and a trademark may be denied registration if it falls into one of the categories listed in 15 U.S.C. § 1052. The second requirement, that a mark must have distinctive character, concerns the ability of a mark to identify and distinguish certain goods as coming from one manufacturer or source and not another. Trademarks have traditionally been divided into four categories of distinctiveness: arbitrary/imaginative, suggestive, descriptive and generic. See Zatarain`s, Inc. v Oak Grove Smoke House, Inc., 698 F.2d 786 (5th Cir.
1983). If a mark is classified as arbitrary/fanciful or suggestive, it is considered inherently distinctive and exclusive rights to the mark are determined solely by priority of use. A mark classified as descriptive can only be protected as a trademark if it has acquired secondary importance in the minds of the consuming public. A secondary meaning is also necessary to establish trademark protection for a personal name or geographical term. Generic terms are never protected by trademark law, as they refer to a general class of goods and do not refer to a clear source. A trademark may be generic ab initio and have refused registration, or it may become generic over time through use. Within five years of registering a trademark in the OTP, any person who believes that they will be harmed or aggrieved by the registration may file an application to have the registration expunged. See, e.g., 15 U.S.C.
§ 1064; 37 C.F.R. §§ 111 – 114. A trademark is a word, name, symbol or design, or a combination thereof, used in trade to identify and distinguish the products of one manufacturer or seller from those of another manufacturer and to indicate the origin of the goods. See 15 U.S.C. § 1127. A “service mark” is a type of trademark that is protected and regulated under the Lanham Act. Service marks are used to identify and distinguish the services of a person or organization, even a single service, from those of others. See 15 U.S.C. § 1127. Service marks and trademarks have essentially the same purpose and operate in essentially the same way, except that service marks identify the source of services, not goods. The term “service” refers only to services provided to others; It does not apply to services exclusively available to the performer.
See also service mark, collective mark, certification mark, trade name. A trademark used to distinguish services provided by one person or company from services provided by others. Service marks have the same purpose as trademarks, but they are used to identify services rather than products. The Tariff Act of 1930 makes it illegal to import foreign-made goods into the United States if the goods or their packaging bear a trademark owned by a U.S. company.