United States trademark law

The goal is to allow consumers to easily identify the producers of goods and services and avoid confusion.

Common law trademark rights are acquired automatically when a business uses a name or logo in commerce, and are enforceable in state courts.

Marks registered with the U.S. Patent and Trademark Office are given a higher degree of protection in federal courts than unregistered marks—both registered and unregistered trademarks are granted some degree of federal protection under the Lanham Act 43(a).

In 1881, Congress passed a new trademark act, this time pursuant to its Commerce Clause powers.

State law continues to add its own protection, complementing (and complicating) the federal trademark system.

Trademark law protects a company's goodwill, and helps consumers easily identify the source of the things they purchase.

In principle, trademark law, by preventing others from copying a source-identifying mark, reduces the customer's costs of shopping and making purchasing decisions, for it quickly and easily assures a potential customer that this item—the item with this mark—is made by the same producer as other similarly marked items that he or she liked (or disliked) in the past.

At the same time, the law helps assure a producer that it (and not an imitating competitor) will reap the financial, reputation-related rewards associated with a desirable product.

[7] The language of the Lanham Act describes that universe [of things that can qualify as a trademark] in the broadest of terms.

Since human beings might use as a "symbol" or "device" almost anything at all that is capable of carrying meaning, this language, read literally, is not restrictive.

The courts and the Patent and Trademark Office have authorized for use as a mark a particular shape (of a Coca-Cola bottle), a particular sound (of NBC's three chimes), and even a particular scent (of plumeria blossoms on sewing thread).

For example, coined words – such as Kodak, Polaroid, or Starbucks – are considered fanciful and receive strong trademark protection.

Trademark law does not protect descriptive terms unless they achieve "secondary meaning" in the minds of consumers.

That is, trademark rights accrue when the public comes to associate the descriptive term with a particular company rather than the product in general.

It is a general practice to hire a trademark lawyer to file the application on behalf of the future owner.

Descriptive marks may become distinctive (acquire "secondary meaning") through 5 years of use in commerce, or through evidence of heavy advertising and market recognition.

A new trademark will infringe on an existing one if the new one is so similar to the original that consumers are likely to confuse the two marks, and mistakenly purchase from the wrong company.

[11] In contrast to copyright or patent law, trademark protection does not have a set duration or definite expiration date.

Instead, Congress' power to create federal trademark law is derived from the Commerce Clause.

Therefore, there must be some degree of interstate commerce present for a trademark to receive Lanham Act protection.

Otherwise, the responsibility is entirely on the mark owner to file suit in either state or federal civil court in order to restrict an infringing use.