Trademarks & Servicemarks

Trademarks and service marks identify the source of a product or service. That aids the public and protects the rights of owners of those identifying brands. We all know what brands are: Chevrolet is a brand, Microsoft is a brand, and Northrop Grumman is a brand.

While patent and copyright regulation are run at the Federal Government level through preemption which is Big Government telling Smaller Government, ‘we will exclusively regulate this area.’ States can play a role in trademark and service mark regulation including through the power to publicly register marks. Florida does that. Marks can extend beyond just a name. Federal law defines a trademark as any word, name, symbol, or device, or any combination thereof, adopted and used by a manufacturer or merchant to identify his goods and distinguish them from those manufactured or sold by others."

They help people distinguish between one company’s products and another company’s similar products. That distinguishing thing could be a word, phrase, logo, package design, or even a color or sound as long as it is used as a method for a consumer to identify one brand as different from another’s brand. The mark just needs to relay to the consumer that the services or goods with that mark come from a unique source. This area of the law protects the public from confusion over the source of goods or services. But for the law in this area, someone with poor English language skills might accidentally buy a can of Caca-Cola and get a less than tasty beverage.

Registered marks help owners prevent other businesses from use of a similar mark on similar services or goods. For instance, Apple Computers, Inc. retains exclusive rights to the name apple" in the computer industry, so someone selling computers could not use apple," If another maker does that, it infringes on the owner’s rights so Apple Computers, Inc. has the right to sue that person or business immediately and force them to stop using the mark. The defendant could even be required to compensate the company that brought about the lawsuit for any losses incurred as well as attorney fees.

Trademarks are considered assets of a business. Therefore, trademarks can be licensed or pledged as collateral. They benefit businesses helping to build a reputation and identity with consumers, and in so doing help to grow and expand the business. Trademark law protects consumers and allows them to be better shoppers by giving a means to distinguish between brands so that they can repeat positive buying experiences and avoid negative buying experiences by steering clear of the brands that they may not like.

It is common for consumers and businesses to use the terms trademark" and service mark" interchangeably though they are not exactly the same thing. Service marks are similar to trademarks. Trademarks are used for the sale of goods and service marks are used for the sale of services.

The terms patent" and copyright" are also incorrectly used interchangeably with the term trademark", despite their differences. All three of those terms are used to describe property that can be sold, bought, or licensed, though they each protect entirely different interests. Copyrights protect original works of authorship, like computer programs, sculpture designs, architectural designs, and paintings. Patents protect owners and creators of new inventions, designs, and discoveries. Trademarks do not protect acts and products of creation and inventiveness, however, and can actually be acquired with no innovative or creative input. An example of this is when people started universally referring to Coca Cola" as just Coke". The term Coke" therefore became a source identifier of the product which is automatically defined as a trademark.

If someone says they are trademarking" something, it generally means that they are registering that logo, name, or mark with the United States Patent and Trademark Office or the State of Florida. This area is fraught with peril. Getting the Registration approved can be difficult. Enforcement can be worse. The recovery of damages and attorney’s fees, and injunctions in court from infringement is complex.

For more information about trademarks, service marks, and copyrights, please contact VolkLaw in Melbourne, Florida. These cases are quite complex factually and legally. We can help you protect your rights regarding infringement and ward off false charges of infringement leveled against you.

The matters discussed here are general in nature and are not to be relied upon as legal advice. Every specific legal matter requires specific legal attention. The law is constantly changing and matters discussed today may not be the same tomorrow. Legal matters are also subject to different interpretations by attorneys, judges, jurors and scholars. No attorney-client relationship is intended or created as a result of matters discussed here. You should consult counsel of your choice if you have any dealings in these areas of the law. Volk Law Offices, P.A. and its attorneys make no representations or warranties with respect to the accuracy or completeness of the matters addressed.