Trademarks are symbols or words that are used to designate the source of origin of a particular good or service. A mark is any word, name, symbol, or design that identifies a product or service. A trademark identifies a product (for example, Coca-Cola). A service mark identifies a service (for example, Holiday Inn).
A mark may be registered pursuant to Federal law if it distinguishes a person’s product or service from products or services of competitors. Registration of a mark on the federal Principal Register entitles a person the exclusive use of the mark. Registration can also be accomplished with the State. However, State registration does not provide as much protection as Federal registration.
Generic terms that merely describe a class of products cannot be registered. For example, the term motor oil or the word airline would not be registerable. Descriptive or geographical terms cannot be registered unless they have acquired a secondary meaning. A mark acquires a secondary meaning when, through long usage, the public identifies the mark with a particular product. For example, Best Western Motels involves a mark which has a secondary meaning.
As stated earlier, registration entitles a person to the exclusive use of a mark. An owner of a mark can enjoin others from using it. This is a Court Order preventing the improper use or duplication of a mark that may confuse the public.
One can be an owner of a trademark or service mark, whether or not it is registered. This is common law protection. Registration is proof of ownership and makes ownership rights easier to enforce. The basic question in lawsuits over marks is whether or not the general public is likely to be confused as to the origin of the service or product.
If the owner of a mark permits widespread use of the mark to describe a general class of products, the exclusive right to the mark may be lost. Two examples are cellophane and aspirin.