Purpose of Trademark
Contrary to popular belief, trademarks do not exist for the sole function of protecting the trademark or brand owner. Trademarks exist to protect the consumer against confusion as to the goods or services that they are purchasing. Consumer expectations are fulfilled when they purchase a particular branded item expecting certain characteristics or quality. For example, I prefer to drink Coca Cola® (also known as Coke®), however, my wife prefers Pepsi®. I am familiar with the particular cola taste of Coca Cola and although both products look similar outside of their packaging, the characteristics and flavor of the two drinks are quite different. When I order a Coke and receive a Pepsi, upon tasting the product, I am immediately aware of the fact that I did not receive what I ordered, as it is not what I expected. This is perhaps one of the simplest examples of consumer expectations with regards to a particular trademark or brand.
The trademark itself must also contain a minimum level of distinctiveness. A trademark functions to identify the source or origin of a particular product or service. It necessarily follows that for a trademark to be connected to a single source or origin, there must be a singular control of the use of the trademark in the marketplace. If more than one party had control of a particular trademark it would lose its ability to distinguish itself in the marketplace, and would not protect consumers against confusion because more than one party would be controlling the nature, quality and characteristics of a particular product or service rendered under the mark.
To be registerable, a trademark must be directly associated with a product or a service. Trade names are not eligible for trademark protection. The Trademark Act distinguishes trade names from trademarks and service marks by definition. While a trademark is used to identify and distinguish the trademark owner’s goods from those manufactured or sold by others and to indicate the source of the goods, “trade name” and “commercial name” are defined in section 45 of 15 U.S.C. §1127 as follows: “The terms trade name and commercial name mean any name used by a person to identify his or her business or vocation.”[1]See TMEP 1202.01
Trademarks and service marks are proper adjectives and should always be used as such. Education of the trademark applicant in this regard is frequently required. A trademark should never be used as a noun. A mark should always be used as an adjective qualifying a descriptive or generic noun that defines the product or service. A mark functions as a particular company’s brand, not as an identifier of a product or service itself.
References
| ↑1 | See TMEP 1202.01 |
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