A “mark” is a symbol, word, or feature that distinguishes something in the market. Pretty much anything that can be detected by the human senses can, in theory, function as a mark:
- a design (think: Nike swoosh);
- words (think: “The Quicker Picker Upper”);
- colors (think: UPS brown);
- sounds (the NBC broadcast chimes); and
- smells (the scent of Play-Doh).
- Marks can be registered in the U.S. Patent and Trademark Office, and with the Secretary of State of a state government. Registered marks can be enforced in federal or state court.
In the United States, unregistered marks are called “common law” marks, similar to how unregistered marriages were once called “common law” marriages. Unregistered marks can be enforced in federal or state court.
Generally, there are four categories of marks:
- trademarks distinguish goods offered in the market;
- service marks distinguish services offered in the market;
- collective membership marks distinguish members of a collective organization;
- certification marks certify the characteristics of a good or service.
Names
“Names” are, generally, the name of a businesses as found on the incorporation or LLC paperwork approved by the state.
A “name” can also serve as a “mark,” but they are not necessarily the same.
Although “tradename infringement” is a term occasionally found in old court cases, tradenames lost their legal importance long ago when trademarks became a more common form of brand protection.
