12.12.3.3: Trademark
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Trademark
A trademark is a word, phrase, logo, shape or sound that identifies a source of goods or services. For example, the Nike “Swoosh,” the Facebook “f”, and Apple’s apple (with a bite taken out of it) are all trademarked. The concept behind trademarks is to protect the consumer. Imagine going to the local shopping center to purchase a specific item from a specific store and finding that there are several stores all with the same name!
Two types of trademarks exist – a common-law trademark and a registered trademark. As with copyright, an organization will automatically receive a trademark if a word, phrase, or logo is being used in the normal course of business (subject to some restrictions, discussed below). A common-law trademark is designated by placing “TM” next to the trademark. A registered trademark is one that has been examined, approved, and registered with the trademark office, such as the Patent and Trademark Office in the US. A registered trademark has the circle-R (®) placed next to the trademark.
While most any word, phrase, logo, shape, or sound can be trademarked, there are a few limitations. A trademark will not hold up legally if it meets one or more of the following conditions:
- The trademark is likely to cause confusion with a mark in a registration or prior application.
- The trademark is merely descriptive for the goods/services. For example, trying to register the trademark “blue” for a blue product you are selling will not pass muster.
- The trademark is a geographic term.
- The trademark is a surname. You will not be allowed to trademark “Smith’s Bookstore.”
- The trademark is ornamental as applied to the goods. For example, a repeating flower pattern that is a design on a plate cannot be trademarked.
As long as an organization uses its trademark and defends it against infringement, the protection afforded by it does not expire. Because of this, many organizations defend their trademark against other companies whose branding even only slightly copies their trademark. For example, Chick-fil-A has trademarked the phrase “Eat Mor Chikin” and has vigorously defended it against a small business using the slogan “Eat More Kale.” Coca-Cola has trademarked the contour shape of its bottle and will bring legal action against any company using a bottle design similar to theirs. As an example of trademarks that have been diluted and have now lost their protection in the US are “aspirin” (originally trademarked by Bayer), “escalator” (originally trademarked by Otis), and “yo-yo” (originally trademarked by Duncan).
Information Systems and Intellectual Property
The rise of information systems has forced us to rethink how we deal with intellectual property. From the increase in patent applications swamping the government’s patent office to the new laws that must be put in place to enforce copyright protection, digital technologies have impacted our behavior.