We often talk about trademark law as though it’s just a matter of business names, logos and mascots. While those things can be protected through trademark, there’s much more to this area of the law. In fact, it might be best to think of trademark registration as protecting the reputation of a business.
What does trademark protect?
Trademark law protects indicators of source. The public policy consideration here is consumer protection: When consumers go to the store to purchase a new bottle of ABC Laundry Detergent, they deserve to know it will be the same product they recognize and trust, and not some inferior product trying to pass itself off as ABC Laundry Detergent.
This is also good for the makers of ABC Laundry Detergent, because they have invested a lot of money and time in creating, manufacturing and marketing a good product, as well as building up goodwill among the consumers who rely on it.
Note that business and product names, logos and mascots aren’t the only things that can indicate the source of a product or service. For instance, ABC Delivery might have its trucks painted in a particular shade of brown, with its delivery people wearing uniforms in a similar shade. Over the years, consumers have learned to associate these colors with the services ABC Delivery provides. Suddenly, a new company, XYZ Delivery, starts operating in the same region, and its delivery drivers wear uniforms in the same shade of brown. This confuses consumers, some of whom begin accidentally hiring the wrong delivery company.
ABC Delivery can protect its business by claiming that XYZ Delivery is infringing on its trademark rights.
Do you need to register?
Here’s where trademark law starts to get more complicated.
A business can gain some rights to its trademarks simply through using them in commerce. In our example above, ABC Delivery had been using a particular shade of brown as an indicator of source within the delivery industry before XYZ Delivery came along, using the same shade of brown. ABC Delivery may be able to convince a court that XYZ has violated its rights.
However, ABC will have an easier time protecting its rights if it has registered its trademarks. It can do this by registering with the Nebraska Secretary of State’s office. This will let every business in the state know that ABC has prior rights to using that particular shade of brown as an indicator in the delivery industry.
But what about businesses out of state? To enforce its rights beyond the borders of Nebraska, ABC Delivery must register with the federal United States Patent and Trademark Office. Compared to registering with the state, registering with the USPTO is a much more complicated and time-consuming process, but if successful, it offers much greater protection.
Companies that are doing business across state lines should seriously consider USPTO registration.