By Marie Quashnock
Even experienced attorneys have a hard time
explaining the difference between different types of intellectual property that
a business can own. While patents
protect the ideas, and copyrights protect how the ideas are expressed or
written down, trademarks protect the goodwill in a product or service. Specifically, trademarks identify your product
or service in the consumers' minds
A trademark is not necessarily the same as
your company name, but it can be. For
example, The Coca Cola Company makes “Coca Cola”, so both its company name and
trademark are the same. The Coca Cola Company
also makes other popular soft drinks.
All of those names are different than the company but they are protected
by trademark.
Names are not the only things which can be
trademarked. You can also trademark logos, designs, slogans, shapes, smells and
even sounds. For example, Intel owns a
trademark for the 5-note sound played at the end of its commercials. (U.S. Trademark Registration No. 2315261, described
as "a five tone audio progression of the notes D FLAT, D FLAT, G, D FLAT
and A FLAT.")
What does trademark protection mean? When you register a trademark, you get the
right to use it exclusively for your product or service. State trademarks protect marks that are used
locally or only in one state. Federal
trademarks protect marks that are used in more than one state. If you find out someone else is using your
mark, you can ask them to cease and
desist.
You might think that your trademark is safe
because you did an internet search and you did not find anyone else with your
name out there. However, a trademark
owner can force you to cease and desist
even if your mark is not identical, so long as it is substantially similar to
yours. When you did your internet
search, you probably were not looking for similar marks. Trademark search companies use search
algorithms that break down your mark and look for marks that are even remotely
similar.
If you find yourself in this situation, the
best you can hope for is a negotiated agreement for both companies to use the
mark concurrently. At worst, you could
be forced to give up your mark entirely, which means changing all your signs,
menus, advertising, website, etc. This
could be very costly. An ounce of
protection is worth a world of cure.
For more information about protecting your
trademark and other intellectual property, please contact us at Alvis Frantzand Associates.
The information provided is for informational
purposes only and not for the purpose of providing
legal advice. You should contact an attorney to
obtain advice with respect to your particular issue
or problem.
