This brief and ever-so-simplified lesson is adapted for my non-lawyer readers from my paper, The Illusion of Intellectual Property: How a Misleading Term Stifles the Communications Decency Act, March 2009 (if you need help falling asleep at night, email email@example.com for the full text article).
A trademark is: “any word, name, symbol, or device, or any combination thereof (1) used by a person, or (2) which a person has a bona fide intention to use in commerce and applies to register on the principal register established by this Act, to identify and distinguish his or her goods, including a unique product, from those manufactured or sold by others and to indicate the source of the goods, even if that source is unknown.” (Lanham Act 15 USC 1127) The Nike swoosh, the Burberry plaid, the name Coca-Cola are all trademarks. Songs (that song that you always hear when the Olympics is on TV: “dun, dun, dun-dun-dun-dun…”), colors (think Tiffany & Co.), and even smells can also be trademarks. Trademark law evolved to protect the trademark owner’s goodwill with the purpose of alleviating consumer confusion and reducing consumer search costs. As Richard Stallman puts it, “trademark law was not intended to promote any particular way of acting, but simply to enable buyers to know what they are buying.” Consequently, trademark law, unlike other forms of IP law (namely copyright and patent law) is not rooted in the Intellectual Property clause of the US Constitution. Rather, trademark law actually stems from the Commerce clause which basically gives Congress a sort of open-ended power to regulate “commerce” in its broadest sense. What’s the difference you ask? Under the IP clause, copyright and patent protection expire after a set number of years (which can vary based on many factors; this is a class in and of itself), and then the works enter the public domain. Trademark law under the Commerce clause, however, allows a trademark to be protected indefinitely, so long as the mark is used in commerce (and other things, e.g., naked licensing, genericide, etc. don’t happen). These “other things” are pretty interesting and quite applicable to what’s going on with branding in today’s market. Stay tuned. . .