Thursday, March 26, 2015

Fear of Trademarks


What is a trademark, and why do writers care? There aren’t many ways a writer can get into trademark trouble, but some let fear keep them from using trademarks in their manuscripts. So even though trademarks are rarely an issue for a writer, it’s helpful to understand them.

In simple terms, a trademark is any word, name, symbol, or device that makes you think of a particular product or group of products. If you hear “McDonald’s” or see the golden arches, you think of a specific chain of fast food restaurants and the menu items those restaurants sell. Notice that marks can include words without symbols and symbols without words. Both the name “Nike” and the swoosh are trademarks, and they do not have to be used together to qualify.

Technically, marks that identify services (e.g., FedEx for overnight delivery) rather than goods are called service marks, but the same rules apply to both service marks and trademarks. So when I talk about trademarks, I am discussing service marks as well.

Consumers rely on recognizable marks to tell them that they are getting a certain quality or a product with particular characteristics. When they see the Nike swoosh on a pair of shoes, they expect those shoes to last. When a counterfeiter prints the swoosh (or something resembling it) on shoddy-quality goods, people are misled. That harms both the consumer (who is not getting what the person thought he or she was paying for) and Nike (who loses sales to the counterfeiter and could suffer harm to its reputation when the shoes fall apart). That’s why trademarks are so important in today’s world.

That’s also why a name or symbol does not become a trademark until consumers recognize it as shorthand for that particular product or service. And even after marks have been used for many years, they vary in their ability to identify a particular product. The law recognizes five types of marks, listed below from the weakest to the strongest.

  • Generic marks can never qualify as trademarks. All hamburgers are hamburgers, regardless of who makes them. A ground beef patty company is free to call itself “Hamburger,” but it cannot prevent anyone else from using the same name.
  • Descriptive marks—which includes surnames and geographic locations—do not qualify as trademarks unless they have acquired a secondary meaning that associates them with a particular product. “McDonald’s” and “The Teaching Company” are examples of descriptive marks that have achieved trademark status.
  • Suggestive marks are marks that suggest the product. “V-8” is less direct than either the generic “juice” or the descriptive “eight vegetables,” but it has a logical connection with the product it represents. Suggestive marks can be trademarks, but they are more vulnerable to challenge than the next two categories are.
  • Arbitrary marks are very strong. These are marks that originally have a meaning that is unrelated to the product. Fruit has nothing to do with computers, so “Apple” is an arbitrary mark.
  • Fanciful marks are the strongest of all. These are simply made-up words, like “eBay.”

What do these categories have to do with your writing? Probably nothing. I just think they’re fun.

But next week we’ll talk about the most common type of trademark infringement and how it could apply to your manuscripts.   

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Kathryn Page Camp is a licensed attorney and full-time writer. Her most recent book, Writers in Wonderland: Keeping Your Words Legal (KP/PK Publishing 2013), is a Kirkus’ Indie Books of the Month Selection. Kathryn is also the author of In God We Trust: How the Supreme Court’s First Amendment Decisions Affect Organized Religion (FaithWalk Publishing 2006) and numerous articles. You can learn more about Kathryn at www.kathrynpagecamp.com.

1 comment:

  1. Thanks for shining light on this topic, Kathryn!

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