How Trademarks Work

By: Thomas L. Peterson

­A trademark is concerned with a company's need to identify its goods or services among its customers and potential customers. Trademarks are all around u­s and often guide our purchasing decisions. Some trademarks, such as those owned by Nike and Coca Cola, become famous and are known throughout the world. Trademarks that reach this level of notoriety are very valuable for the branding and name recognition that they achieve. Companies with famous trademarks jealously protect their use so the consuming public does not become confused over who is providing the branded product. In this article, you will learn what a trademark is and how it is used as a means of branding a product.

The United States Patent and Trademark Office defines a trademark as "any word, name, symbol, or device, or any combination, used, or intended to be used, in commerce to identify and distinguish the goods of one manufacturer or seller from goods manufactured or sold by others, and to indicate the source of the goods. In short, a trademark is a brand name."


The proper identification of a good or service with a prominent mark serves a number of purposes. The mark may aid a customer with a question or complaint in finding the responsible company. A company may use a trademark to guarantee the quality of goods or services. The best view, however, is that a trademark reflects a consistent level of quality. The customer is likely to get the same quality each time they make a purchase.

In this context, the trademark has little, if anything, to do with who makes the product or offers the service. Only the quality of the good or the service represented by the trademark matters. Courts refer to this role of the trademark when observing that the purpose of trademark law is to protect consumers from confusion as to the "source" of goods or services. The expectation is that goods from the same source, or licensee, will always have consistent quality.

Federal registration of a trademark begins with filing an application for registration in The United States Patent and Trademark Office. The applicant must identify the mark for which registration is sought and describe the goods or services associated with the mark. The application may be preceded by a registrability search for similar marks that could bar registration of the mark under consideration.

While it is not necessary to federally register a mark to obtain trademark protection under state law or common law, federal registration provides a number of important advantages. These advantages include constructive notice to the public of the registrant's claim of ownership of the mark, a legal presumption of ownership nationwide and the exclusive right to use the mark on or in connection with the goods or services described in the registration. Federal registration also confers jurisdiction on federal courts to address trademark issues under the mark and the right to register the mark with the U.S. Customs Service to prevent importation of infringing foreign goods.

So long as all required fees are paid to the Trademark Office and the mark is continuously used in commerce, a Federal trademark registration will remain in force.

Closely related to trademarks are service marks, collective marks and certification marks. Like a trademark identifies the source of a product, a service mark identifies the source of a service. A collective mark is a trademark or service mark that is used by a group or organization. A certification mark is a mark used by someone other than the mark's owner to certify quality, accuracy or other characteristics of the user's goods or services.