What is a Trademark?

A trademark is any sign that can being represented graphically and which identifies goods or services of one company and distinguishes them from goods or services of others.

Trademarks may consist of:

• words,
• designs,
• letters,
• numbers or
• the shape of the goods or their packaging.

Definition of a Trademark

The definition is extremely broad, covering not only:

• words and devices,
• sounds,
• shapes,
• colours and
• smells

can be and are trademarks. It is important to remember that trademarks or brand names are commercially valuable assets, not only indicating the source of a product or service but also operating as indicators of quality. Companies are increasing recognising the importance of trademarks with regard to brand loyalty and also increasing opportunities to generate income through licensing. A trademark is an extremely valuable marketing tool.

A trademark is a proper adjective that modifies a generic name of a product. As a proper adjective it should always be capitalised. For example, “Budweiser” is a trademark; “beer” is a generic name. A trademark should never be used as a noun or a verb. The Xerox Corporation fights to preserve its trademark by discouraging the use of the name of the company’s trademark products as nouns or verbs. It is inappropriate to say “make a Xerox”, or “Xerox the document”, and the company actively pursues those who misuse its trademarks to prevent the mark from becoming an unprotectable generic name for photocopies. Some examples of words that were once trademarks but became generic names through usage as nouns are “aspirin”, “shredded wheat”, “escalator” and “hoover”.

What is in a name, a rose would smell as sweet irrespective of what it was known as…

A trademark is not a trademark until it has been used to identify goods or services. For services using the mark in advertising, on business cards or the like is enough. For goods, the mark must be affixed to the goods or the packaging in order to be entitled to the legal status of a trademark.

How To Choose A Trademark

Apple, Coca-Cola and Mont Blanc all have internationally recognisable trademarks.

A good trademark is one that the public will easily remember and associate with your company’s goods or services, as contrasted to other goods or services of the same generic kind. A trademark should be readily distinguishable from the generic or common name of the goods or services. Cute variations of generic names usually do not make good trademarks. Trademarks should also be different from the marks of competitors and shouldn’t sound the same or look the same. The strongest trademarks are those which have no dictionary meanings, such as EXXON, XEROX or ZENECA. If your business is (or may become) international the difficulties of translation and pronunciation should be considered.

When a tentative trademark has been selected, a search should be done to find out whether anyone else is using a similar trademark for similar goods. Often the process of selecting tentative trademarks and searching for conflicting uses must be repeated several times before a suitable trademark is found.

What is a Business Name or Trade Name?

A “trade name” is the name of the business. It can be a persons name or that of a company. It may or may not be the same as a trademark that identifies a product of that business. For example, “Ford” is a trademark for automobiles made by a company whose trade name is “Ford Motor Company”. Corporate names are the most widely used form of trade name. A trade name may or may not be the legal name under which a business is incorporated. A trade name does not have the same legal status as a trademark.

In Australia for credit protection purposes any entity that trades under a name not its own must register the trading name as a business name. Use of the trade name may provide common law rights but registration per se is a legal requirement and does not bestow on the business any ownership right which registration as a trademark provides.