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  • Writer's pictureDenny Esford

The Trademark Basics – Part 1

Many of our blog posts here dive into current events that relate to intellectual property law, including trademark, copyright, patent, and trade secrets. While we try to explain a few key things about each area of law, the main focus is on the event that has made headlines. We think it’s fascinating how frequently IP law makes the news, and it happens in surprising ways. However, to kick off the summer, we thought we’d go back to basics.

Let’s talk about trademarks. A trademark is a word, short phrase, or symbol that is used in commerce to identify and distinguish the goods or services of one provider from those of another. This is important because of the sheer amount of brands that exist, even for one specific product. Each brand has their own marks that let the public know, this product is ours, it is different from other brands.

A trademark also serves as a form of consumer protection. When you are out shopping and see the brand you love on a roll of paper towels, you know what level of quality to expect. If you saw a roll with an identical mark, but a different brand, and the quality was terrible, you’d be angry at the company you trust. Trademarks allow you to rely on the mark when you see it in the marketplace, providing a sense of security.

Let’s look at a few examples. Some of the first marks that come to mind are the Nike swoosh, the Christian Louboutin red sole, or the Apple logo. When you see those marks, you know that you’ll be getting a certain type of athletic wear, a high quality shoe, and a phone with certain features. You trust the mark when you make the decision to buy the product, because you know what kind of products the brand is known for. That is the consumer component of trademark law.

Many of the infringement cases we see involve some form of consumer confusion. You may remember our recent post about the NFL’s strict trademark policing (see here: The NFL does not allow others to use the phrase “Super Bowl” in their marketing for fear that it will look like the NFL has worked with them. For example, if some bar created a Super Bowl Brew, and it was disgusting, its likely people would think the beer was associated with the NFL, and the NFL would receive negative feedback. Trademark protection allows the NFL to avoid that; the mark is being used exclusively for promoting specifically licensed uses controlled by the trademark owner.

So, this is how trademark law works in relation to you, the consumer. I’m sure you can think of many marks you prefer off the top of your head. Trademarks are truly everywhere, from your local grocery store to the sporting events you watch on TV. Next time, we will tell you more about how these marks are legally protected, why a trademark could be denied legal protection, and what business owners can do if someone else improperly uses a mark and harms their business opportunities or just tarnishes their good name.

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