What is a Trademark?
Today let’s talk to about what a trademark actually is. Let's dive in!
Trademarks: The Basics
A trademark is a word, slogan, or logo that is used in connection with the sale of your goods or services. Here's the key–it has to be used in connection with a sale. We also call this “in commerce.” This is really, really important because if you come with a catchy slogan or a logo and you do nothing with it–it is not truly a trademark.
Examples of trademarks, something like Coca-Cola, you see the red can and we automatically think soda, right? That is a trademark. Another example would be the “apple” for Apple. You see it and you associateit with technology of some sort: a phone, a watch, a computer, and now even Apple TV. We recognize it and we know it's used in connection with the sale of these products.
Trademark vs Registered Trademark
Did you know there’s a difference between a trademark and a registered trademark? Yep! A trademark is just the word, slogan, or logo that you're using in connection with those goods or services in commerce. It does not mean it is registered. A registered trademark is registered with a federal agency called the United States Patent and Trademark Office–or the USPTO.
It's really important that we draw this distinction between trademark and registered trademark because registered trademarks have a whole host of other rights than just a regular trademark.
It's also important because when you have a registered trademark you can use the ® symbol behind it so people understand that there's a federal registry where you (or your business) are shown as the Owner. So we tread carefully when talking about trademarks and registered trademarks.
You might have a trademark that's your social media handle. Because you use it in connection with your sales and you use it in a way that people can associate you with that sale, that could be a trademark. However, if you do not have it registered, it is not a registered trademark. Again, registration is with the USPTO.
Now people always ask me “what about a slogan across a t-shirt that I created–isn't that a trademark?” No. Something across a t-shirt could be merely ornamental–it has to be used in connection with the sale of that t-shirt.
Here's an example: Nike. People think Nike is a registered trademark You're right, it is; but there's a Nike store, there's a Nike website. Plus, on the shirts, Nike is typically on the tag or Nike is displayed in a way that identifies that it comes from that source: Nike. If you have a slogan across a t-shirt but the tag is from a different company, that's not true use as a trademark and you are not going to get that registered as a registered trademark. Nor can you really claim much on common law trademarks. Common law trademark means that it's not registered– just so we're clear there.
#Hashtags
Another really common question I get asked about is hashtags. Hashtags are huge–people are creating their own and trying to trademark them with a registered trademark, trying to claim ownership, or trying to stop other people from using their hashtags. It's a hot issue that I could really dive deep on. The tricky thing about hashtags is they have to be used in connection with that sale of a good or a service. Merely putting a hashtag on your social media posts is not going to count as a registered or even just a regular common law trademark. It’s not going to count. If you take that hashtag and try to register with the USPTO, they're going to kick it out and say it's not a trademark.
But can a hashtag become a trademark or a registered trademark? Yes, but again, it has to be used in connection with your goods or services in commerce. A common way people do this is to have their community of followers use the hashtag. That's fine, but that's not quite it. Then, in the back end with their courses their website, where they're advertising what they do and who they are, they have that hashtag again–kind of like a business name so to speak. Just think about that Nike example–how they use it on their website–so it's not being used only as a hashtag on social media, it's also being used as a store name, a business name, a course name, or some other type of identifier that's associated with goods and services and the sale of something in commerce.
So what else do you want to know about trademarks? Let me know!
