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.
__________
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.
