Trademarks are defined by federal law to be any word, name, symbol, color, sound, product shape, or device, or any combination of these that is adopted and used by a manufacturer or merchant to identify goods and distinguish them from those made or sold by anyone else. Service marks are a related concept applying to services as opposed to products; for example, “American Express” is a service mark distinguishing a service rather than a particular product. Traditionally, trademarks were intended to help protect a vendor from imitators confusing customers in a geographic region. Trademarks also help provide a protection against fraud: if someone markets counterfeit goods using a trademark, the trademark holder has some legal recourse. Now that we are involved with multinational corporations doing business on the global Internet, trademarks have become more important as geographical limitations have waned.
Trademarks have some similarities to patents and copyrights. Establishing one involves four basic steps:
Pick your trademark and establish it in commerce or trade. Trademarks must be based on established use in the marketplace—you cannot think up interesting names for trademarks and “hoard” them for later use or sale. Instead, you need to have an established and ongoing use of the trademark in the marketplace.
Simple use of the trademark establishes it, similar to the way that a copyright is established for text once it is in fixed form. However, ...