Leaving Your Business "Mark" on the World
By: Alex Rechenmacher

For anyone who has ever come across a set of golden arches while looking for food or ran into a 'swoosh' while trying on shoes, they may be familiar with the relevance of trademark law in today's business environment.

Trademarks provide their owners with the legal right to prevent others from using confusingly similar identifying symbols or words, also known as 'marks'. The importance of trademarks and service marks are undeniably valuable in a world where thousands of marketers try to get your attention every single day. For business owners, 'branding' your product or service is paramount to obtaining repeat business, or for gaining a reputation with the public. Protecting the good name of your business is the goal of your trademark attorney.

The first step to obtaining a good and valuable trademark or service mark is to offer a product or service that will create a desire for consumers or businesses to return to your business, and to offer it in connection with a word, a phrase, a symbol or device that is unique to your company. Trademark protection can then arise then in two ways. First, business owners can allow protection to develop naturally by using the mark in connection with the product or service so well, that the public unquestionably connects that particular mark with your particular product. In other words, if a competitor tried using a similar mark, you could convince the court that the competitor is benefiting from the reputation you built behind that name or symbol.

The second way to obtain trademark protection is to have their mark registered with the state and federal offices to get an official record of their rights. This process will create a statutory right to bar others from using a similar mark in competition with your business. Businesses that register with the federal government may use the familiar "®" in connection with their mark.

Trademark registration will be granted if the mark is not confusingly similar to another mark in use or registered for a similar product or service. However, trademark registration might also be denied if your mark is not distinctive. Marks that are considered generic are the most commonly denied, such as "burgers" for a restaurant, or "bicycles" if you sell two-wheeled transports. Descriptive marks are also usually denied, such as "soft" for a pillow manufacturer, or "fast" for a delivery company.

Marks that are merely suggestive of a product or service, instead of descriptive, can be registered. If you have ever come across a Greyhound bus, or a Jaguar automobile, you might be familiar with marks that suggest, but do not describe, 'speed' to the consumer. Other marks that can be registered are ones that are arbitrary marks - ordinary words used for an arbitrary purpose - such as Apple for computers, or Snickers for a candy bar. Finally, fanciful marks, which generally have no pre-established meaning can also be registered. Examples of fanciful marks include Kodak or Clorox.

Trademarks are a valuable asset to a company's portfolio of intellectual property because they allow businesses to connect with the public and protect them from unfair competition.