Trademarks are a crucial aspect of brand protection. They are the reason why you can’t sell sneakers adorned with the Nike swoosh, or whip up a tasty dark beverage in your kitchen and name it “Coca-Cola 2.0”.
However, trademarks go beyond logos and names. Surprisingly, they can also protect sounds (like the MGM lion’s roar), shapes (like the Coca-Cola bottle’s contour), and colors (UPS has trademarked its specific shade of brown).
In fact, trademarks can cover a wide range of distinctive brand identifiers, including unconventional elements like scents.
Whether you’re a startup with a novel idea or an existing business looking to protect your brand, understanding what can be trademarked is vital. This knowledge could save you from severe headaches or potential legal issues.
So, what exactly qualifies for trademark protection? Let’s discuss this in-depth, starting with a fundamental definition: what is a trademark?
What is a Trademark?
A trademark is a brand’s protected, unique identifier in the marketplace. It can be any distinctive sign or symbol representing a company’s identity and setting its products or services apart from competing brands. While names, logos, and phrases are the most common forms of trademarks, they’re not the only options.
“Trademark” can refer to both trademarks and service marks. The clear difference is that while a trademark applies to goods, a service mark is used for services.
Before you file a trademark with the United States Patent and Trademark Office (USPTO), make sure that the intended mark:
- Has not already been registered by another brand
- Identifies the source of your company’s goods or services.
- Gives legal protection to your brand.
- Mitigates counterfeiting and fraud.
That said, note that trademarking a word, phrase, design, or any other element does not necessarily mean that you legally own and can prevent others from using them. What a trademark does is give you rights and control over how your marks can be used with goods or services within your category or industry.
For example, ‘Apple’ is a trademark of the innovative tech company that makes the iPhone, MacBook, Apple TV, and other cool gadgets. But it doesn’t stop anyone from using the term apple to market or sell the apple fruit. It only restricts others from manufacturing technology and branding it with the prestigious Apple name or logo.
What Can Be Trademarked?
The United States trademark law is flexible. It permits you to trademark just about anything that identifies your brand and is being used in commerce. This isn’t limited to the typical suspects like business names, logos, and taglines. Even abbreviations, numbers, and multimedia assets like combined sounds and images are all fair game. Play-Doh even trademarked their signature nostalgic scent!
But before you run off to file that trademark application, note that there are a few restrictions. The big no-nos are generic and purely descriptive trademarks. For example, you can’t file a trademark for the term “phone” because you’re selling mobile devices. You also can’t trademark “sudsy” for your bathing soap product.
Why? Well, “phone” is just too generic, and “sudsy” simply describes what soap does. These won’t fly with the U.S. Patent and Trademark Office (USPTO). Once you stick to these few rules, any and everything else is good to go:
- There’s no conflict with any other trademark.
- The trademark is distinctive.
- The trademark is actively in use in commerce
- The trademark can effectively identify the product or service.
The USPTO has approved many trademarks over the years. Ever wonder why Coca-Cola bottles have that distinctive curve? It’s trademarked. That NBC chime you hear on TV? Yep, that too. A Brazilian shoe company even trademarked a specific scent for their sandals!
So, don’t be afraid to get creative when creating your brand’s signature. If it sets you apart in the marketplace and isn’t generic or purely descriptive, you might have a shot at trademarking it with the USPTO.
Trademark examples
Now that we know just how limitless your options are, let’s look at different kinds of trademarks and their corresponding famous examples.
- Company Names: Google, Apple
- Product Names: Corvette, iPhone
- Band Names: The Beatles, Coldplay
- Logos: Adidas’ trefoil leaves, Twitter bird
- Slogans: “I’m lovin’ it” (McDonald’s), “Think different” (Apple)
- Colors: Tiffany Blue (Tiffany & Co.), Cadbury Purple
- Sounds: Netflix “ta-dum,” THX Deep Note
- Shapes: Coca-Cola bottle, Toblerone triangle
- Characters/Mascots: Mickey Mouse, Michelin Man
- Blog Names: Mashable, TechCrunch
- Podcast Names: Serial, This American Life
- YouTube Channel Names: PewDiePie, Jenna Marbles
- Restaurant Names: Taco Bell, Starbucks
- Services: PayPal, Uber
- Scents: Play-Doh’s distinct smell
What Can’t Be Trademarked?
While trademarks offer broad protection for brand identities, not everything can be trademarked. The USPTO has some specific rules about what’s off-limits. Here are a few things that typically can’t be trademarked:
- Names and logos that are too similar to existing trademarks.
To prevent consumer confusion, the USPTO is very strict about this. You will likely get rejected if your proposed trademark is similar to an already registered mark. Note that it’s not just about avoiding exact copies. Even similar marks can be problematic.
- Generic phrases that can’t be exclusively associated with your brand.
As we said earlier, you can’t trademark standard terms that everyone in your industry uses. For example, a furniture store can’t trademark “comfy chairs” because it’s too generic. The idea is to prevent any one company from monopolizing everyday language related to their products or services.
- Common names and surnames — unless you can prove they are distinctively associated with your brand.
John Doe’s Plumbing can’t trademark “Doe” just because it’s the owner’s name. However, if you can show that consumers strongly associate a common name with your specific brand (think McDonald’s), you might scale through the USPTO’s application process.
- Geographically descriptive names (unless there are other distinctive elements).
You generally can’t trademark a name that describes where your business is located. “Chicago Pizza” wouldn’t cut it for a pizzeria in Chicago, Illinois. But if you add unique elements that make it distinctive, like “Jane’s Spicy Chicago Pizza,” you might have a chance.
These rules aren’t just arbitrary. They’re designed to keep the marketplace fair and prevent consumer confusion. If you want to trademark something, consulting with a trademark attorney is always a good idea. You can also do thorough research on the USPTO website to ensure you’re on the right track.
Wrapping Up
Trademarks and trademarking are important for business. Yes, trademarks help companies of all sizes safeguard their branding assets, like names and logos. But there’s even more — trademarks can help your brand’s reputation, integrity, and customer loyalty.
From catchy names to jingles and even specific shades of purple, we’ve seen how almost unlimited the types of trademarks you can file in the US are. If you’re set to trademark your brand, note that it’s not just about trademarking something cool or creative. It’s about standing out in a sea of competitors and building a brand that sticks in people’s minds.
Ready to start your trademark journey?
H2 Frequently Asked Questions
What can be used as a trademark?
Virtually any distinctive branding element that distinguishes your goods or services from others in the marketplace can be used as a trademark. This includes words, names, symbols, logos, designs, colors, sounds, scents, and even shapes or a combination of these. The key is that it must be distinctive and used in commerce to identify the source of goods or services.
What cannot be a trademark?
Generic terms, purely descriptive marks, and functional features generally cannot be trademarked. Also, deceptive, scandalous, or disparaging marks are not eligible for trademark protection. Names or likenesses of living persons without their consent and flags or insignias of nations, states, or other government entities are also typically off-limits.
What names can I trademark?
You can trademark names that are distinctive and not confusingly similar to existing trademarks. This includes invented words (like Kodak) or arbitrary words used out of context (like Apple for computers and other gadgets). Suggestive names that hint at product qualities without describing them directly are also off-limits. Personal names can be trademarked if they’ve acquired a secondary meaning associated with your goods or services.
