What Can Be Trademarked?

A trademark is, arguably, the most widely used type of intellectual property for entrepreneurs and business owners. For this reason it is important to understand what can — and cannot — be trademarked in the U.S. This blog will cover the key details so you can have a solid strategy for protecting your company’s intellectual property. 

What is a Trademark? 

First, let’s cover what a trademark is. The U.S. Patent and Trademark Office (USPTO) defines a trademark as a “word, phrase, symbol or design” that helps consumers distinguish the source of products. A company’s services can gain federal protection through service marks. One of the most important aspects of any trademark is that it must be used in a commercial setting; even after you successfully gain federal trademark protection, you must continue to use it in connection with your products or services (unless you have a good reason not to). 

Common Items that are Trademarked

Many successful companies have trademarked their logos, slogans, and even color schemes. For instance, take the United Parcel Service (UPS). The company’s signature phrase, “What Can Brown Do For You?” is a federal trademark. The company’s logo, with the brown and yellow colors interplayed over a shield-like image, is also a trademark. However, what many consumers do not realize is that the brown tone UPS uses for its logo and trucks is also a federal trademark. The name of the color, originally called “Pullman Brown,” is now typically referred to as simply “UPS Brown.” 

Additionally, you can even trademark smells. If you were like most kids who grew up in the U.S., you can probably recognize the smell of Play-Doh almost instantly. As of 2018, that smell is now intellectual property for Hasbro, the multinational conglomerate and maker of Play-Doh. Some important nuance here is that individual Play-Doh scents are not trademarked, but “the combination of a sweet, slightly musky, vanilla-like fragrance, with slight overtones of cherry, and the natural smell of a salted, wheat-based dough” that is present in all Play-Doh products. 

What Cannot Be Trademarked? 

Besides copyrights and patents, which are the two other main types of intellectual property, marks that are merely descriptive or similar to an existing mark will not likely receive federal trademark protection. For example, a restaurant called “Great Burgers” is not a good candidate to be trademarked because it simply describes the food products it sells. A mark that is fanciful or arbitrary, on the other hand, is more what the USPTO looks for. Apple is a good example of an arbitrary trademark. While the word “apple” refers to a fruit, it otherwise has no connection to the technology behemoth started by Steve Jobs, Steve Wozniak, and Ronald Wayne. 


Alvarez Law Group is Here For You

It seems like there’s a million things to consider when starting your small business. Near the top of your list is securing funding and turning a profit so you can keep the lights on. Neglecting your intellectual property could be a big mistake, however. Our firm regularly helps entrepreneurs secure their trademarks so they are set up for long-term success. Reach out to our team to set up a consultation. 

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