Do you know what a trademark is? Some legal terms can be confusing, and the differences between trademarks, patents, and copyrights can be unclear. Trademarks, patents, and copyrights are all distinct concepts within intellectual property, and they all serve different purposes. Let’s talk more about trademarks.
A trademark or service mark is a recognizable sign, design, or expression that distinguishes goods or services of a particular source from others. You establish trademarks generally through one of two methods: (1) common law; or (2) registration through a governmental body.
A copyright is the exclusive legal right to authors of original works including literary, musical, and other certain intellectual property.
A patent is the grant of a property right to the owner of an invention.
Common Law Trademark
You establish a trademark at common law in North Carolina by: (1) being unique; (2) not generally descriptive; (3) have a long period of continual use; and (4) establishing that there would be a likelihood of confusion by the public between the established mark and any subsequent mark of the same name/kind. You may notify the public of your unregistered mark by including “TM” for trademark. If you have a service mark, you use “SM” instead. The other well-known symbol, ®, is only used for registered marks.
So, what is unique when it comes to trademarks? Your mark should be something that is not already in use by another business. Specifically, it should not be something used in your same industry or geographical location. For example, the name Tiddlywinks may be unique for your mobile application. However, if that name is already in use by a competitor, your proposed mark would not be unique.
Generally, descriptive marks don’t receive registration because they merely describe the service or good instead of establishing a unique name. For example, let’s say I want to establish a mark for Blue Buttons. If my business is the sale of blue buttons, I would likely face some opposition in registering the mark. It might be possible with enough time and money.
A period of continual use can help establish a trademark at common law because without the registration, you must be able to show that you’ve used the alleged mark in commerce for a continuous period of time. The continual use shows your desire to have that mark be a stand in for your brand.
Likelihood of Confusion
Finally, the likelihood of confusion test determines exclusivity over the mark. In the case of application for registration, this test helps compare the registration to existing similar marks. In a common law scenario, if there is an action brought by the trademark owner or someone trying to establish first use of the alleged mark, there may be room for two marks to co-exist peacefully. For example, if I’ve been using the mark “Widgets” for the sale of computer fans, while another company uses the name or mark “Widgets” to sell hot dogs, our companies could likely co-exist peacefully, and the likelihood of confusing hot dogs with computer fans would be very low.
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