Trademarks 101

We’ve all seen the little “TM” symbol near names of commercial products but what does it actually mean? The “TM” stands for “trademark” which, according to the United States Patent & Trademark Office, is a word, phrase, symbol or design, or a combination of words phrases, symbols pr designs, that identifies and distinguishes the source of the goods of one party from those others. In basic terms, this means that once you have a trademark on a particular word, phrase, symbol, or service, no one else may use that particular “mark” without your permission.

Trademarks come into play in terms of intellectual property, which is a fancy term for an individual’s creative take on a particular product, service, phrase, or word. With intellectual property, a person can trademark their individualized original creation, but cannot trademark a given idea. They can only trademark their own particular version of said idea. For example, Sylvester Stallone cannot trademark the idea for creating a movie based on an underdog boxer who becomes champion of the world through all sorts of adversity. He can, however, trademark his particular take on said idea in the form of Rocky Balboa and that character’s exploits.

In terms of business, the gourmet restaurant McDonald’s has a trademark on the name “McDonalds” as it pertains to the sale of fast foods and services. A person, even if their name was in fact “McDonald,” could not choose to start up their own fast food company and use that particular name.

A person or company could, however, choose to use the name “McDonalds” if they were entering into a field of business that was not similar to the fast food industry. The key is whether or not there is potential confusion in the market place. If, for example, Joe McDonald wanted to open a jewelry business and call it “McDonalds Jewelry” he could do so because there would be little confusion as to what services he offers as opposed to what McDonald’s fast food restaurant offers.

In the iconic 1987 Eddie Murphy film “Coming to America,” John Amos’ character created a fast food chain called “McDowell’s.” Despite the fact that this was the character’s real last name, by using this as a name of a competing fast food chain, there would be all sorts of confusion as to whether McDonald’s and McDowell’s were the same entity, due to the similar name, symbol, product, and service. In real life, the McDonalds Corporation would have challenged McDowell’s use of the name in relation to its restaurant. Similarly, if he chose the name “Burger Queen,” the Burger King Corporation would have been all over it.

To file for a trademark, one would need to go through the United States Patent and Trademark Office. By visiting their website, one can search the trademark database to see if a particular mark has already been taken. When searching, please keep in mind that a given mark may already be taken, but may be used for a different product or service. If this is the case, you may still be able to use the mark you originally intended, assuming no confusion in the market place exists. One does not technically need to hire an attorney in filing for a trademark, but may choose to do so if things get overwhelming.

For the USPTO’s website, go to www.uspto.gov

Carbone & Carbone LLP, Martin A. Carbone, Esq., Attorney at Law

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