What is a Trademark and What Can You Trademark?

Trademark law provides people, businesses, and organizations a way to protect the integrity of their brand names, images, and brand reputations in the marketplace. Through a series of rules and guidelines, trademark law helps us determine who owns particular marks and to define the scope of legal protection for those marks.

The textbook definition of a trademark tell us that trademarks consist of a particular word (e.g. DISNEY®), design (e.g. the apple logo used by APPLE®), or combination (e.g. the Wendy’s Logo) that are used to identify a unique source of goods or services.

Sometimes trademarks consist of a color (such as brown for UPS® shipping services) or trade dress, which is the distinctive look or packaging of a product. The unique style and color of the COCA-COLA® hourglass bottle is an example of protectable trade dress.

Trademarks play a vital role in commerce because they help consumers distinguish between the goods and services of one seller from another and guide purchasing decisions.

When Can a Trademark Be Protected by Law?

To receive legal protection, a trademark must be distinctive of the underlying goods or services and be in commercial use. Let’s take a closer look.

1. Distinctive

Trademark distinctiveness is a measure of the relationship between a particular mark and the goods or services it identifies. Highly distinctive marks bear little to no relationship to the marked products, whereas non-distinctive marks are not eligible for trademark protection because they contain words that merely describe the goods or services.

Marks that bear no relation to the underlying goods or services are inherently distinctive. For example, the word KODAK has no meaning or relationship to photography products. Whereas marks that describe the underlying goods or services are not distinct and cannot initially receive trademark protection.

At one time, the mark HEALTHY CHOICE was considered descriptive for nutritious frozen meals. But over time, primarily through extensive marketing efforts and high sales, the mark became much more than a descriptive term. Consumers came to view it as a brand name they recognized and trusted. When an originally descriptive mark comes to have a “second meaning” as a brand name in the marketplace, it will have acquired trademark distinctiveness and become legally protectable.

You can learn more about how to choose a strong mark in the Spectrum of Trademark Distinctiveness infographic.

2. Commercial Use

Trademark rights come from using the mark in commerce. Commercial use requires placement of a mark directly on products or their packaging (or in association with services or in the advertising of services) and offering them for sale or distribution to the public. Note that formally registering a trademark can expand trademark rights, but it cannot create them!

The Bottom Line

A trademark is a word, symbol, or combination used to identify the unique source of goods. It can only be protected by law if it is distinctive and in commercial use.