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What Is a Trademark? It's Less About the Name and More About What the Name Does

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A trademark is anything that tells customers who a product or service comes from. Usually it's a word, a phrase, a logo or some combination. The thing itself matters less than the job it does: it identifies your goods or services and sets them apart from everyone else's.

That's the core of it. The rest of this article fills in what follows from that idea, because most of the confusion about trademarks comes from treating them as something you own outright, like a piece of property with a fence around it.

The definition, without the legalese

The federal trademark statute, the Lanham Act, defines a trademark as any word, name, symbol or device, or any combination of them, used to identify and distinguish one person's goods from those made or sold by others, and to indicate the source of the goods. The USPTO's plain version is close to that: a word, phrase, symbol, design or combination that identifies your goods or services.

A few terms travel with it.

A service mark is the same thing for services instead of products. A clothing label is a trademark. The name of a hair salon is a service mark. In everyday speech, and in most of what I write, "trademark" covers both.

A mark is the umbrella word the statute uses for all of them.

A trade name is different. The statute defines it as a name used to identify a business or vocation. The legal name of your company is a trade name. It becomes a trademark only if you also use it to identify what you sell.

What a trademark actually does

Think about standing in a store aisle. You don't know who manufactured most of what's on the shelf, and you don't need to. You see a name or a logo you recognize and you know what you're getting. The statute even says a trademark indicates source "even if that source is unknown." You may not know which company is behind a brand, but you know that everything carrying it comes from the same place.

That function is what the law protects. Trademark law is built around preventing confusion. The question in most trademark disputes isn't "who thought of this word first?" It's whether customers are likely to be confused about who's behind the goods or services.

This is also why a trademark doesn't give you a word in general. The USPTO lists this as a common misconception. Your rights cover the mark as used with your goods or services, not every use of the word everywhere. A trademark is always a pairing: a sign, plus the specific things it's used on.

The same logic explains why two businesses can sometimes use the same name. When the goods or services are unrelated, customers may never connect them, so identical names can coexist. When the goods or services are related, even names that are only similar can be a problem.

How you get one

In the US, you get trademark rights by using the mark in commerce, not by filling out a form. Start selling under a name and you generally start building rights in it. These are often called common law rights.

Common law rights are limited. The USPTO describes them as tied to the geographic area where you use the mark.

Federal registration is a separate, optional step. You apply to the USPTO, the application is examined, and if it's approved the mark goes on the federal register. Registration gives you rights that reach across the whole country, a public record of your claim, and legal presumptions that the mark is valid and that you own it.

So there are really two different things people mean by "having a trademark." One is having a mark, which comes from use. The other is having a registered mark, which comes from the USPTO. The symbols track that split. You can put ™ next to a mark you're claiming whether or not you've filed anything. The ® is reserved for marks the USPTO has registered. More on that in the article on trademark symbols.

What a trademark isn't

A few things get confused with trademarks often enough to list.

It isn't your business registration. Forming an LLC or corporation puts a name on a state's business register. The USPTO's guidance is direct about this: using a business name doesn't necessarily qualify as trademark use, and business names are typically registered by state and local governments, not the USPTO. I go through the difference in Your LLC Is Not Your Trademark.

It isn't your domain name. Registering a domain doesn't give you trademark rights. A domain can function as a trademark if you use it to identify your goods or services, but the registration alone doesn't do it.

It isn't a copyright or a patent. Copyright protects original creative works, like writing, music and art. Patents protect inventions. A trademark protects the thing that identifies the source. One product can involve all three, and they follow different rules. That comparison is in Trademark, Copyright or Patent.

It isn't your brand, exactly. The USPTO draws this line too. A brand is a marketing idea: your reputation and how people feel about you. A trademark is the legal tool that protects the names and symbols that carry that reputation.

Not every name qualifies

Because a trademark has to identify one source, some words can't do the job. The generic name for a product, like "bicycle" for bicycles, isn't a trademark at all. It's what everyone calls the thing. A term that only describes the product, like "creamy" for yogurt, is weak and generally can't be registered unless customers have come to associate it with one company over time.

Names that are invented, or that have no connection to what they're used on, are the strongest. The USPTO's examples are Exxon for petroleum and Apple for computers.

How long a trademark lasts

Trademark rights don't run out on a fixed date. They can last as long as you keep using the mark, and a federal registration can be renewed again and again.

The flip side is that you can lose it by not using it. Under the Lanham Act, a mark is considered abandoned when its use has been discontinued with no intent to resume, and three consecutive years of nonuse is treated as prima facie evidence of abandonment. A mark can also be lost if it becomes the generic name for the product.

A federal registration has its own upkeep. The owner has to file proof of continued use between the fifth and sixth year, renew between the ninth and tenth, and then renew every ten years. Those deadlines are laid out in Your Trademark Registration Can Die of Neglect.

Put in one sentence: a trademark is a sign that tells customers where something comes from, your rights in it come from using it, and those rights are measured by what you use it on.

If you're sorting out what counts as a trademark in your own business, the services page lays out how the search and filing packages work, and the FAQs page answers most of what comes up before a first call.

Book a free 15-minute discovery call with the attorney (opens in a new tab)

(No legal advice is given on the discovery call. It's a chance to tell me what you're building and hear how the process works.)

Sources

This article is general information, not legal advice. Reading it does not create an attorney-client relationship.

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